With rhythmic regularity of the tides, the first of the year is followed by the Chief Justice’s “state of the judiciary” statement in which the Chief provides the country with a snapshot of the federal courts’ condition. That has come to mean that we are treated to a lament over the fact that the Senate is not confirming judicial nominees and the President is not nominating them fast enough to fill the vacancies on the federal courts (which at the moment stand at 96). It’s a bummer, all right. Over the years judicial case loads have gone up so that means that fewer judges must dispose of more cases.
So why aren’t those Senators speeding things along? Answer: because they are often bogged down in partisan fights over the ideological and political predispositions of the candidates for the bench. The upshot is that the judicial selection process has grown more idelogical and more confrontational. No, there weren’t any “good old days” when only wise men were selected to mount the woolsack. Judges have always been selected by the appointing authorities (Governors, Senators and Presidents) with an eye on their place in the ideological and political spectrum. That’s patronage, folks, and it has been with us from the beginning. But even if you acknowledge that, things have changed. The judicial nomination and confirmation process has grown more partisan and nastier, and its partisan nature more open.
It started in its modern form in the 1930s, when FDR threatened to pack the Supreme Court with additional judges who would give him the majority necessary for approval of New Deal legislation that up to then was not faring well in the Supreme Court on constitutional grounds. It never came to that, because in the infamous “switch in time that saved nine” the Supreme Courtt backed down and began approving the new New Deal laws. The rest, as they say, is history. But the harm had been done. A popular President of the United States had placed his seal of approval on the idea that what the country should resort to is a government of men, not of laws, as the politically incorrect terminology of the day put it.
In more modern times, the villain was Teddy Kennedy. His scurrilous attack on Judge Robert Bork who was up for confirmation as a U.S. Supreme Court Justice, set a new low in judicial politics. It made it bluntly clear that when it came to nominations to the U.S. Supreme Court, the brave, new Senate confirmation process would turn, not on the quality of the nominee, but on plain, openly voiced partisan politics.
What to do about all this? There is not a hell of a lot that can be done, the way things are now. One of Parkinson’s Laws has it that it’s easier to get into things than out of them. How true. As long as judges, whether on the Supreme Court or lower courts, act as setters of public policy, and as long as they choose on ideological grounds which constitutional provisions to enforce, which not to enforce, and which to make up as they go along, the people will have a legitimate claim to exercising increased control over who gets to rule them from the bench. After all, this country was founded on the premise that only that government is legitimate that governs with consent of the governed. That does not mean that judges should stand for election, or that their decisions should be subject to popular vote. Judicial independence is a good thing. But so is the other i-word: judicial impartiality. As long as judges enforce explicit provisions of the Constitution, they have a strong claim to protection from public ire, when those provisions turn out to be unpopular. But when they find stuff in the Constitution that no intelligent, English-speaking person could discern by reading its language, that’s another story. Ditto when they simply ignore constitutional provisions they don’t like. Like that “public use” clause in the Fifth Amendment, to use a familiar example in our field of law.
When courts claim that “public use” need not be public or use, but rather a benefit to private individuals whose prosperity will hopefully trickle down to the community, they are asking for trouble. Add to that the judge-made rule whereby a determination of “public use” is properly made, not by the courts interpreting the Constitution but by local, self-serving politicians whose decisions are said to be “well nigh conclusive,” and what you have on your hands is a disregard of the checks and balances doctrine, that facilitates excesses and eventually leads to public revulsion. The idea that any one-horse burg’s unelected redevelopment agency may just kick people out of their unoffending homes and businesses, so their properties can be turned over to more favored, wealthier folks who are politically connected to city hall, is a prescription for trouble. Under these circumstances, the people have every legitimate reason to scrutinize judicial candidates with an eye on their politics and ideology, not just their wisdom and legal learning. This isn’t good, folks. As Alex Kozinski, Chief Judge of the U.S. Court of Appeals for the 9th Circuit once put it in one of his opinions, “When we act as politicians, we will be treated like politicias.”