August 5, 2002 | Commentary on Legal Issues
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 foundations.
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.
Todd Gaziano is the director of the Center for Legal and Judicial Studies at The Heritage Foundation.
Originally appeared in the National Law Journal