Anthony Kennedy’s announcement of his impending retirement from the Supreme Court has generated a lot of commentary from both ends of the political spectrum. The Left is full of angst at the thought of a ‘conservative’ replacement, while much of the Right is giddy with the same prospect.
The Left have made it clear that they are interested in the oxymoronically-named ‘results-oriented jurisprudence.’ For many on the Right, the same is true; the only difference being the preferred results. This is obvious with the widely accepted notion of ‘liberal’ vs. ‘conservative’ judges.
The Senate’s role in the confirmation process took an ugly turn with the nomination of Robert Bork by President Reagan on July 1, 1987. Ted Kennedy took to the Senate floor and denounced Bork in the following words:
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”
Of course this attack was slanderous and false, but the Democrats went along with it, leading to the defeat of his nomination, and the coining of a new term, ‘Borking,’ which has since entered the lexicon of political infamy. Ever since then, Borking has become the new normal with Senate Democrats.
Conservatives, on the other hand, lament this trend, and pine for an earlier period of comity and collegiality, whereby the President is afforded the courtesy of a successful nomination, assuming the nominee meets the qualifications of character and of ‘judicial temperament,’ usually defined as legal writings that are within the mainstream of legal thought. ‘Within the mainstream’ encompassed a wide range that covered the gamut from views acceptable to Democrat and Republican presidents alike.
Comity and collegiality, however, desirable, fail to address the critical issue of judicial philosophy of constitutional and statutory interpretation. I propose that the only acceptable philosophy is originalism.
There is discussion on the margins as to what originalism means, but here is the core of the issue: an originalist holds that a constitutional provision or statute should be construed to mean what it meant at the time of ratification or adoption. If a word or phrase has changed in its meaning in the intervening years or centuries, the original meaning controls. Note that this does not mean that the Constitution or a statute can never be changed. It does mean that the only legitimate way to change any provision is by ratifying an amendment (to the constitution) or by passing new legislation (for a statute).
Some object to originalism on the grounds that the further back we go, the more difficult it is to determine original intent. They say that since we are more than two centuries from the Founding era, it is almost impossible to discern.
A moment’s thought should reveal the absurdity of this argument. For example, who really does not understand the constitutional provision for two Senators for each state, or the rule for proportional representation in the House? The question answers itself. Furthermore we have a wealth of writings, such as the Federalist Papers, the writings of the Anti-Federalists, notes of the Constitutional Convention itself, letters, and newspaper articles from the Founding era on, that leave no doubt as to the meaning of either the Constitution or of early legislation.
In addition, a judge should apply the law or the Constitution to the case before him or her, and rule in this specific case. This is part of the original understanding of the duty of a judge. Enough with district court judges presuming to make rulings binding on the other two branches of government, or that are binding on the nation on the whole, rather than for this particular case in this particular district.
Why is this judicial philosophy so important, you ask? Well, any other basis by which to judge is going outside the constitutional mandate for the judiciary. Reinterpreting a constitutional provision based on changed circumstances, changes in meanings of words, or preferences on the part of the judge, is a de facto constitutional amendment, and encroaches on the constitutional prerogatives of the states, which are the only entities constitutionally empowered to ratify amendments. Reinterpreting statutes based on these same criteria encroach on the constitutional prerogatives of the Legislature, to which ALL legislative power ‘[is] herein granted.’ Decisions based on any criteria other than the original meaning of a constitutional provision or statute is thereby a violation of a judge’s oath of office, and is disqualifying.
Unfortunately, other criteria seem to loom larger in the minds of too many. Following are a couple of general assertions which cover most of these proposed criteria, and the problems with them.
1) “We need someone who is a member of [favorite ethnic/gender/sexual preference group].”
This is nothing more or less than a call for a judge to violate his or her oath by substituting private preferences for what the law actually says. It matters not whether the judge is of African descent, a ‘wise Latina,’ an old white guy, or any other permutation of irrelevant categories. A judgment based on anything other than the plain meaning of the law is out of court (pun intended).
2) “We need someone who is sensitive to the plights of [favored interest group].”
This goes without saying. However this does not change the responsibility of the judge to rule on a case according to the law. Anything less is again a violation of the oath of office.
Most judges, if pressed, will generally profess allegiance to this principle, but will often rule where the law is not clear. It’s true that Congress has gotten into the habit of passing ambiguous legislation with the expectation that the blanks will be filled in later by administrative regulation or court rulings. A judge worth his or her salt will resist the temptation to try to figure out what Congress MIGHT have meant, and will not issue any rulings that are de facto laws. Put it back on Congress, where it belongs to clarify and re-legislate if necessary.
When it comes to executive orders or agency regulations, it should go without saying that these should have force ONLY within the executive branch. Beyond this, it becomes a de facto law, which again is the prerogative of the Legislature. In any case where EOs or agency regulations go beyond the law, or affect any party other than the executive branch, the decision should go against the EO or agency as an unconstitutional encroachment on the powers of the Legislature.
Given the foregoing, what is the responsibility of a President when nominating, or a Senate when voting on, a judicial nominee?
The answer is clear. Both need to honor their own oaths of office to uphold the Constitution. Nominating or confirming a judge with a track record of violating his or her own oath is itself a violation of the oath of office. Certainly, character is important. One aspect of good character is fulfilling one’s oath of office. Intelligence, experience, and temperament are likewise important, but mean nothing if not accompanied by the proper judicial philosophy.
What about the voters? It is incumbent on each of us to understand the constitutional issues and refuse to be swayed by other arguments if the proper philosophy is lacking. We need to communicate this to the President, our senators, and to the public. A sea change won’t happen overnight, but sustained and principled discourse on this issue is sorely needed.
The pre-Bork pattern of nominating and confirming judges, while more decorous than the circus the process has become, was not necessarily better from a judicial standpoint. The sine qua non when considering judicial fitness is a person’s judicial philosophy. And the only acceptable judicial philosophy is originalism.