August 5, 2002
By Todd F. Gaziano
What's new is that many of President Bush's initial nominees,
particularly his appellate court nominees, have languished for more
than 14 months without a hearing. Whether or not they all deserve
to be confirmed, and whether the overall rate of confirmation is
contributing to a judicial-vacancy crisis as some have argued, the
Senate's conscious refusal to schedule hearings is a striking
escalation in the confirmation wars.
There is not even the prospect of a hearing by the end of this
year for most of President Bush's first set of nominees, including
many distinguished lawyers, professors and judges. And the few
hearings that were scheduled for appellate court nominees this year
have resembled an inquisition.
The tit-for-tat theory to explain this is not complete or very
helpful. The real answer is that the judiciary has become much more
powerful over the last half-century. This is not as it should be.
But it is a fact with profound consequences for more than just the
confirmation process. The founding generation believed that the
federal judiciary would be "the least dangerous" branch in large
part because they thought the "judiciary power" was fundamentally
different than that exercised by the political branches. In
Federalist 78, Hamilton argued that legal traditions would cabin a
judge's role and mode of decision-making. A judge, he maintained,
would exercise "judgement" not "will." That conception of law-that
judges can objectively discern what the law is, rather than what it
should be-was the governing orthodoxy for more than 130 years.
Although there were some antecedents in post-Civil War nihilism,
the legal realists of the 1920s were the first to undermine
significantly the earlier conception of law. Legal realism, mingled
with strains of pragmatism, relativism and deconstructionist
thought, captured the legal academy between the 1920s and 1960s,
and then began to bear substantial fruit in the courts. Many in
this era-and at least through the mid-1980s-came to see law as just
politics by another name.
No matter how profoundly misguided this development was, it is
not surprising that adherents increasingly urged the courts to
become instruments of social change in overtly political ways. The
courts' rulings ending government discrimination were (and are)
necessary, but the tools the courts developed to fight the massive
resistance to civil rights were also invoked to promote more
amorphous social goals without clear constitutional
For a judge, such a seductive request is difficult to resist,
especially when the dominant legal culture has eliminated the
traditional moral constraints on judging. With differences of style
rather than content, the courts began to assume the role of another
political branch to which dissatisfied citizens could turn.
In this climate, it is easy to see why rancorous judicial
confirmation battles might develop. The process itself further
politicizes the courts and reinforces the notion that the courts
are little more than a political plum. Ideology matters greatly to
a senator or a nominee who sees no meaningful difference between
law and politics. To say that ideology should not matter much, and
that extensive inquiry about it is destructive of an independent
judiciary, espouses an understanding of law that few senators seem
to share now.
The prevailing attitude is that the stakes are high, and to the
victor go the spoils. Modern-day legal realists and activists of
all stripes desperately want judges who will enact their will.
Modern federalists sincerely want judges who will fight the
temptation to act on political biases and instead adhere to a mode
of judging that minimizes such influences, including careful
adherence to the text and the intent of those who enacted the
governing text. To the legal realists and activists, who believe no
such code can be followed, the federalists' statements appear
either ignorant or dishonest.
Thus, it is likely to take more than a procedural ceasefire
among senators to end the war. One other condition might be
required: either a significant change in our collective view of the
proper role of the courts or an exogenous contraction in the
judiciary's power (even less likely). As difficult as the first
condition might be to foster, the federalist view is steadily
gaining ground again. And men and women of good faith from the
right and left have spoken out that ideology should not matter. But
if nothing changes in the confirmation wars, the legal realists'
understanding may become a self-fulfilling prophesy: Only those who
behave as political ideologues will be appointed.
Gaziano is the director of the Center for Legal and
Judicial Studies at The Heritage Foundation.
Originally appeared in the National Law Journal
ed080502: A Partisan Blood-Sport
Todd F. Gaziano
Director, Center for Legal & Judicial Studies
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