Sunday, September 29, 2002

While American opinion-makers focus on Iraq, a radical change in the structure of US politics is quietly taking place in the Senate. That body's power to "advise and consent" regarding nominees to the federal bench has long been used as a tool with which to exert influence on the long-term political direction of the judiciary. But in the past, to admit to explicit political criteria for evaluating judges was something of a taboo. That changed in 1987, with the hearings on the Supreme Court nomination of Judge Robert Bork, during which senators openly proclaimed Bork's judicial views to be "outside the mainstream", i.e., politically unacceptable. The rejection of Judge Bork on political grounds caused a subsequent mild backlash against blatantly partisan evaluation of judges, and for a while tactics such as personal scandal-mongering (culminating in the Anita Hill travesty) and procedural foot-dragging have been deployed as public cover for partisan conflicts over nominees. But with the latest Senate rejections of Bush appointees Charles Pickering and Priscilla Owen, and contentious hearings over recent appointee Miguel Estrada, senators are now quite openly admitting that their votes on nominees are political judgments based on the nominees' likely rulings on key public policy issues.

Now, given the massive aggregation of power by the US federal judiciary over the past fifty years, it is not surprising that the elected branches of government would attempt to increase their influence over the exercise of that power, by using the only practical tool available--the judicial nomination process. (I predict, in the future, a sudden upsurge in interest in judicial impeachments, as well, if one party or ideological tendency should manage to reach a two-thirds majority in the Senate.) What the Senators may not have considered, however, is that their politicization of the confirmation process could easily backfire: a judge vetted for political acceptability and endorsed by the Senate may subsequently consider him- or herself--and be considered by others--to have earned a mandate for even broader exercises of political power than today's judges normally consider legitimate. The result would be the worst of all possible worlds: government by appointed tribunes with the trappings of political legitimacy to justify their diktats, no democratic accountability, and no checks on their absolute power to "interpret" the law (not to mention the constitution) in ways that explicitly overrule the decisions of the elected branches of government.

Stephen Carter, in his 1994 book, "The confirmation Mess", suggested that, given that Supreme Court justices are inevitably going to shape public policy at least as much as any elected official, they should perhaps be elected officials themselves. The idea seemed ludicrous to me when I first read it; after all, the US government already contains two elected branches quite capable of expressing the popular will through legislation and executive action. If the third branch is making government too undemocratic, surely it would be far simpler just to weaken its power to thwart the other two branches, by returning its mandate to its original scope--applying the law as written by others. Of course, I was rather naive back then, and certain that Americans would never permit their democratically elected leaders to yield their command meekly to an appointed quasi-junta of their own making.

By now, I know better.

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