President Clinton will likely have the opportunity to fill several vacancies on the Supreme court. How should he go about doing it? Although the president should look to a variety of considerations, by far the most important is a prospect's substantive political commitments. By substantive political commitments, I mean a prospect's stance towards the central, inescapable, politically significant controversies of our time. In the 1850s, a presidnet should definitely have wanted to know where a prospect stood on the slavery question; in the 1930s, where a prospect stood on the New Deal; in the 1960s, where a prospect stood with respect to the civil rights revolution. Today President Clinton should aquire knowledge that will let him know in detail and with confidence where a prospective nominee stands on all of the most vexing issues that trouble our society including reproductive freedom, race relations, freedom of expression, and the status of religion in a secular society. To acquire this information, the president (and the Senate) should directly ask prospects about their political beliefs. If a person declines to answer, the president should probably draw a negative inference, strike that prospect from the list of candidates, and move on to consider others who will allow the president access to his or her thinking.
One thing the president should not do is place a powerful branch of government in the hands of individuals whose political commitments are unknown to him. That would be folly. Yet, remarkably, that is what some observers urge.
Consider, for instance, the argument of Professor Stephen Carter of the Yale Law School. In an op-ed piece in the New York Times, Carter claims that the Reagan and Bush administrations "systematically eroded federal courts' independence" by applying "litmus tests to insure that those who became judges--particularly Supreme Court Justices--could be relied on to vote the way the conservatives preferred." He portrays "quizzing nominees about their views on controversial cases" as a politically depraved exercise of power heretofore practiced mainly by discredited politicos on the right.
According to Carter, "When William Brennan was badgered by Senator Joseph McCarthy about loyalty-security cases and Thurgood Marshall was interrogated by several segregationist senators about civil rights and criminal procedure cases, liberals were properly outraged that a nominee would be asked, even indirectly, about his likely votes." Carter rails against searching for information that will allow the president to predict confidently how a nominee will vote as a justice. "Certainly it is true," he concedes, "that information is usually available from which it is possible to make educated guesses about how potential justices might vote. But to emphasize those predispositions as a prerequisite for appointment politicizes the Court." The president, Carter concludes, "should forgo litmus tests and turn to one of the many experienced federal or state appellate judges whose skills are respected across the political spectrum." Otherwise, Carter warns darkly, the cycle of judicial politicization will never end and "[t]here will be less and less reason to treat the 'opinions' of the courts as authoritative and no reason at all to grant the judges--and justices--life tenure."
Carter's argument reflects much of the confusion, mysticism, and sentimentality that commonly stymies realistic understandings of the judiciary. He objects that the course I advocate would "politicize" the Court. It would be helpful if he would point to a moment in our history in which the selection process was unpoliticized--a point at which a president was blithely indifferent to the political associations and ideological predispositions of a prospective nominee and considered only "skill." He will be unable to make such a showing because, unsurprisingly, this moment has never existed. How could it? Members of the Supreme Court occupy seats with life tenure within a bureaucracy that wields considerable power. A president would be a fool or, worse, politically amoral to elevate to such an office anyone whose politics suggested a proclivity toward policies with which the president strongly disagreed.
Carter's references to the Reagan and Bush administrations' ideological screening of potential nominees and his allusions to the difficulties that William Brennan and Thurgood Marshall received as nominees at the hands of McCarthyists and segregationists should scare no one. There was, and is, nothing wrong with politicians of any ideological stripe demanding to know where prospective justices stand on political issues that are likely to be implicated in cases arising before the Court. What was wrong in the instances to which Carter alludes was not the questioning but an environment in which straightforward progressive responses to the inquiries posed a danger to candidates. Instead of seeking to insulate nominees from questions, liberals and the left should seek to persuade the public of the attractiveness of progressive answers.
Carter claims that insisting upon knowing the political predispositions of nominees--or, in his lingo, imposing a litmus test--erodes the independence of the judiciary. But how so? Judicial independence means placing individuals beyond the usual means of political discipline after that person has been elevated to judicial office. That insulation is attended to by constitutional provisions that explicitly mention two mechanisms that afford ample protection to the judiciary against interference from the other branches of government. One is life tenure: once appointed and confirmed, judges can be removed only pursuant to impeachment by the House of Representatives and conviction by the Senate--a costly, cumbersome process that has never been successfully invoked to oust a recalcitrant justice.
The second is income protection: the Constitution forbids Congress from decreasing the salaries paid to members of the federal judiciary. Neither Carter nor anyone else has set forth a convincing or even plausible explanation of why judicial independence--the autonomy of sitting justices--is eroded by subjecting a person to inquiries designed to inform a president of the political virtues of one candidate as opposed to another. After all, once a person is seated as a justice, the mechanisms protecting judicial independence ensure that person can change his or her mind without fear of losing office.
Moreover, contrary to what Carter suggests, it is precisely because justices are so fully insulated from the normal rigors of political discipline (that is, periodically standing for election) that it is especially important and appropriate for those responsible for elevating them to determine as fully as possible their political character. If the electorate makes a political mistake in selecting a president or a member of the House or Senate, the electorate must wait only two, four, or six years before rectifying that mistake. If the president makes a political mistake in the selection of a justice, only the indefinite and often painfully slow process of aging can remedy it.
Why is it important to know the political character of justices? Because their interpretation of statutes and determinations of the constitutionality of laws is inevitably influenced by that character. Expertise alone is an insufficient guide by which to determine who, from the point of view of a president, would best give meaning to the ambiguous, open-ended clauses that comprise the most important and controversial parts of our written constitution: due process, equal protection of the laws, freedom of speech. "Skill" of various sorts is important. A president should certainly insist on choosing someone who will be sufficiently adept, knowledgeable, and confident to persuade colleagues, isolate adversaries, and educate the public. But juristic skill is merely a tool; it does not guarantee that a justice will reach good results. For that to happen, expertise must be guided by a good political vision. It stands to reason that the president and the Senate should avail themselves of means by which to determine a prospect's political vision. Doing so shows no disrespect for the Court. Rather, it reflects a laudable determination to avoid putting the future of the federal judiciary into the hands of persons whose political commitments are unknown.
Carter and others claim that seeking to know in detail the political views of nominees or potential nominees is bad because it suggests a desire to select persons who are close-minded. "[A]ppointing justices who make up their minds before, not after, hearing arguments threatens judicial integrity," Carter writes, "and interferes with the Court's proper functioning. It was wrong for the Republicans to do it; it would be wrong if the Democrats do it." The specter Carter invokes is a straw man. Those with whom he argues do not advocate appointing justices who are closed to argument. Rather, they maintain that any person worthy of serious consideration has already considered arguments, that such a person has likely reached conclusions (that are possibly changeable in light of additional consideration), and that whatever conclusions he or she has reached should be accessible to a president. The idea that knowing a prospect's current views somehow taints the integrity of the selection process is hard to fathom, given that many of the best people any president is likely to consider for a justiceship are people with public careers whose stances on heated topics are already known.
Pleas to de-politicize the selection and confirmation process, to cherish unpredictability in the future course of nominees, to purposefully keep ourselves ignorant about the beliefs of people we empower represent a quasi-religious yearning to make the Court into a shrine above the messiness of politics. But what the process of selection and confirmation needs is more rather than less "politics"--more widely available knowledge about nominees, more debate, more participation by the governed, more presidential accountability for nominees, and more common sense. Neither the president nor the public should be asked to accept a pig in a poke. To know fully the political character of those he is considering selecting, the president must ask pointed questions--and demand clear answers.
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