As we feared, following Justice Scalia’s untimely death, we found ourselves knee-deep in hypocritical bullshit going on about the asserted impropriety of the Republican Senate contemplating the blocking of the appointment of a replacement for Justice Scalia by a lame-duck, controversial President in an election year. As if that never happened before. The same politicians who in the past insisted that an outgoing president in his final (election) year should not appoint Supreme Court Justices, are now insisting that, au contraire, doing so is the President’s sacred duty under the Constitution which says no such thing.
But all this should not come as a surprise to thinking people with a minimal knowledge of recent history. If you don’t think so, join me in a little history lesson in which we examine how it all came about.
It was President Franklin Delano Roosevelt who planted the seed from which today’s judicial appointment mess grew — no rational debate about that. After the Supreme Court of the 1930s rejected several New Deal measures as unconstitutional, Roosevelt got tough and announced that if the Justices did not buckle under to his administration’s demands he would get legislation passed by a compliant Congress, allowing him to appoint a half-dozen additional Justices — his kind of Justices — thus packing the court with people who would now find New Deal legislation acceptable. And in something less than a judicial profile in courage, the court’s members buckled under and in the infamous “switch in time that saved nine,” began approving New Deal legislation. And there went the status of the judiciary as an independent, co-equal branch of government participating actively in the checks and balances system. In time, it also gave rise to a whole new legislative attitude, whereby constitutional objections to new legislation, made during legislative deliberations, are brushed aside as matters that should be decided by the courts. The courts obliged and took on the legislators’ job. And there went the authority of the legislature as an independent co-equal branch of government, because legislators could now legitimately pass the buck to judges and let them make tough decisions without having to face the voters.
For a great example, see the Oakland Raiders case. There the mighty, activist California Supreme Court pronounced itself unable to review on constitutional grounds a city’s decision to seize the NFL franchise of the Oakland Raiders, in order to turn it over to others who would comply with the city’s demand that they give up their constitutional right to travel, and refrain from moving to another venue. Asked the mighty, activist California Supreme Court in its original opinion: “Who are we to . . .” tell the city what the constitutional term “public use” means?
There are other examples in the law of eminent domain. There is a rule in it holding that when the legislature (or a non-legislative, unelected body to which the power of eminent domain has been delegated) decides that a proposed taking is for a “public use,” that event renders the decision “well nigh conclusive,” and not subject to meaningful judicial review. Neither is the statutorily required public necessity for the taking (no necessity whatever need be shown in federal law– Bragg v. Weaver). In California, statutorily required findings of necessity are reviewable but only in cases of bribery or “gross abuse of discretion.” Until 1976, it was not even subject to that sub-minimal level of review — it was OK with our courts if the resolution was procured by fraud, bad faith and abuse of discretion. (People v. Chevalier).
Condemning agencies, on the other hand, take the not-unreasonable position that since “public use” is a constitutional term, it, along with other constitutional matters, is properly something to be finally decided by the courts. Thus, the pertinent law reduced itself to a farcical game in which the legislature and the courts defer to each other, like the characters in the old “Alfonse and Gaston” comic strip, while serious constitutional issues go unanalyzed.
Then, on the broader constitutional field, along came the Warren Court whose supporters informed us with a straight face that, alas, the legislative branch of government had screwed up when it failed to keep the law in tune with modern reality as seen by them, so there was nothing for the judiciary to do, but to ignore the separation-of-powers doctrine and take up law-making big time, in order to give the legislators a helping hand, sometimes whether they wanted it or not. Nobody, as we recall, argued that by the same token the legislature should be able to try cases to lend a hand with litigation, in cases of judicial failures.
You know the rest. By degrees, to a large extent, courts became law-making institutions, constitutionalizing policies that judges found agreeable and hiding behind precedents of their own making when they did not feel like it. Thus, in our field — land-use — judges developed something that well-known land-use treatise author, Norman Williams aptly termed “gastronomic jurisprudence” — whatever feels right in a judge’s gut. And so, federal judges decide all sorts of constitutional issues arising from local land-use enactments, but when it comes to regulatory taking cases many of them disclaim any intention of becoming “zoning muftis” in doing so.
And if you think I exaggerate, read the passage in Penn Central Transp. Co. v. City of New York, where the U.S. Supreme Court confessed in haec verba that it was “simply unable” to formulate any reliable rules of law in inverse takings cases, and would instead decide liability, if any, on a case-by-case basis, by examining the facts of each case presented to it, thereby substituting individual judicial factual determinations for a rule of law. Or, as Judge Oakes put it, the court gave us a legal regime in which conflicting precedents [are] simply available as makeweights that may fit preexisting value judgments. 56 Wash L.Rev. at 613. And our own California Supreme Court told us in the HFH case that court decisions holding that the challenged regulations are takings or legitimate exercises of the police power, are merely the courts’ shorthand way of labeling the results. (15 Cal.3d at 522).
So with a judicial atmosphere like that, not only in takings law but in other fields as well, we should not be surprised when citizens eventually decide that what comes out of the marble palace in Washington, is actually more like a choice of preferred policies than formulating reasoned rules of law, binding in future cases. Thus the wretched subject of reverse discrimination (starting with the De Funis case) has been in a state of continuous litigation for decades with no one able to tell what is and what isn’t improper reverse discrimination. This gives rise to a system in which, in the words of Justice Scalia, a judge “begins to resemble a finder of fact more than a determiner of law,” which in the end is a “concession of defeat — an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.” Thus, “equality of treatment is difficult to demonstrate and, in a multi-tiered judicial system, impossible to achieve,[*] predictability is destroyed, judicial arbitrariness is facilitated, [and] judicial courage is impaired.”56 U.Chi. L. Rev. at 1187.
But, you say, what does all that have to do with Judge Alex Kozinski whose name graces the title of this post. Only this. A while back he wisely admonished his fellow judges that “When we act act like politicians, we will be treated like politicians.” As the current kerfuffle over Justice Scalia’s replacement makes clear, Kozinski was right. We now face an unabashedly political battle over filling the Supreme Court vacancy based on partisan perceptions of the substantive views of prospective candidates being advanced for filling Scalia’s seat. And just you wait until the Senate confirmation hearings! For some reason we have a hunch that the word “circus” won’t do them justice. But what do we know?
This is not to say that we pine for some nonexistent “good old days,” when judges were selected from a body of impartial scholars. Partisanship was always an ingredient of presidential selection of judges. It’s the nature of the beast. But the older judicial selection decisions were not as openly or as crudely partisan, or so openly insistent on elevating reliably partisan individuals to the bench as they are now.
Bottom line: Judge Kozinski’s assessment was sound, and his prophecy came to pass. Judges have been making policy big time, just as politicians do in the elected branches of government. So judicial candidates should not be surprised when the criteria for their appointments are being treated as mere politics — with not just politicians but also the people demanding that if those black-robed folks on high are going to rule them, they should have a say in their rulers’ selection. That, goes their justification, would only be democracy, a process on which this country was founded, and for which our soldiers have bled and died all over the world. Of course, for all its democratic virtues, that would be a lousy way to select nominally impartial judges, but if you insist on rejecting the traditional criterion of judicial impartiality — to the extent it is achievable — that’s what you will get.
So be careful what you strive for because you may get it, and when you do, it may not be what you expected. It may turn out to be the likes of Donald Trump. Or worse.
* For a perfect example, compare Justice O’Connor’s right-to-take eminent domain decisions in Hawaii Housing Authority v. Midkiff with her dissent in the Kelo case. Now tell us how to reconcile these two opinions. Good luck!