pageok
pageok
pageok
The Case for Senate Consideration of the Ideology of Judicial Nominees:

I rarely disagree with co-blogger and coauthor Jonathan Adler. However, I do respectfully dissent from his view that "the Senate should be relatively deferential in confirming judicial nominees, focusing on qualifications rather than ideology."

Political ideology - at least in so far as it influences judicial decisions - is an extremely important attribute of a judicial nominee. The reason is clear: when judges make decisions in major cases, it is important that they get them right, not just that they do a good lawyerly job of justifying whatever conclusions they reach. As between a technically well-written opinion defending the wrong outcome in an important case and a mediocre opinion defending the right one, there is good reason to prefer the latter.

In cases where the relevant statute or constitutional provision is very clear, ideology may not influence the outcome much. But where there is vagueness and doubt (as there is with several important parts of the Constitution), both empirical research and common sense suggest that ideology may matter a lot. Moreover, the rise of nontextualist modes of interpretation has led to situations where ideology might influence the interpretation of even clear and unequivocal legal texts.

Since the dawn of the Republic, presidents have taken ideology into account when deciding who to nominate. Senators have every right to take it into account in deciding who to confirm. That is not to say that other considerations - including qualifications - are unimportant. They are and they should be. Nor do I mean to suggest that either the president or senators should only approve those nominees who agree with them 100%. However, ideology is one of several considerations that both the president and the Senate can reasonably take into account.

Obviously, senators will sometimes oppose a nominee for ideological reasons that I think are unsound. But the same is true of presidents, who will sometimes use flawed ideological criteria in picking their nominees. On average, however, a nominee subject to scrutiny by both the president and the Senate is likely to be better than one whose ideology has been weighed by the president alone, and thus represents a possibly much narrower range of interests.

The nomination procedure established by the Constitution inevitably invites consideration of ideological and political factors. After all, judges are nominated by the nation's most prominent political leader (the President) and are subject to confirmation by another political body (the Senate). Unlike many European countries, we do not have a "professional" judiciary in which appointment and promotion is controlled by higher ranking judges, bureaucrats, or other "nonpolitical" officials. On balance, that is a good thing. Flawed, as they are, the ideological preferences of the president and the Senate are more likely to lead to good outcomes than those of a narrow clique of career government bureaucrats.

That said, those who oppose a nominee because of his or her ideology should do so explicitly, not behind dubious accusations of incompetence or ethical impropriety. For example, as co-blogger Jim Lindgren has shown, American Bar Association ratings of judicial nominees generally rank liberal nominees higher than conservative ones with similar credentials. The ABA has every right to take ideology into account in rating judicial nominees, but it should not pretend that its partially ideology-driven judgments reflect a purely nonpolitical evaluation of objective "qualifications." On this issue (if on little else), I agree with Democratic Senator Charles Schumer:

For one reason or another, examining the ideologies of judicial nominees has become something of a Senate taboo. In part out of a fear of being labeled partisan, senators have driven legitimate consideration and discussion of ideology underground. The not-so-dirty little secret of the Senate is that we do consider ideology, but privately. Unfortunately, the taboo has led senators who oppose a nominee for ideological reasons to justify their opposition by finding nonideological factors, like small financial improprieties from long ago. This "gotcha" politics has warped the confirmation process and harmed the Senate's reputation.

Shunning explicit ideological considerations has not always been the Senate's practice. From the beginning of our republic, the president's judicial nominees have been rejected based on their political ideologies, sometimes even for their views on a single political issue. In 1795, George Washington's nomination of John Rutledge to be chief justice was scuttled because Rutledge had criticized the Jay Treaty. In 1845, President Polk's nomination of George Woodward was defeated because of his positions on immigration. ...

It would be best for the Senate, the president's nominees and the country if we return to a more open and rational debate about ideology when we consider nominees.

Related Posts (on one page):

  1. The Case for Senate Consideration of the Ideology of Judicial Nominees:
  2. Judicial Nomination Fights -- Past and Present:
  3. Another Judicial Nomination Fight:
Tom9239 (mail):
Absolutely right.

I disagree with Ilya on many things, but I think there's way too much at stake in the nominations of appellate judges for us to pretend ideology doesn't matter.

I hope that the perceived need for hypocrisy about judges' ideology is starting to fade, and that the "common sense" of the future will be that of course ideology matters.
5.16.2007 1:01am
Dan Simon (mail) (www):
Shouldn't it be the electorate, rather than the Senate, that's selecting the judges, if they're to be selected on the basis of their ideology? After all, to paraphrase Shaw, we've already determined what they are--it's just the position we're haggling over....

(Or perhaps, Ilya, you don't think the "rationally ignorant" electorate fit to choose their politicians, either?)
5.16.2007 1:42am
vic:
we are a republic for a reason- no!
5.16.2007 2:56am
Daniel Chapman (mail):
I more or less agreed with you until you brought the ABA into it. If the ABA is permitted to take ideology into account when rating a judge, then it has abandoned its ONLY relevance in the process. The ABA is supposed to rate a nominee's QUALIFICATIONS. This has NOTHING to do with ideology unless you're willing to argue that adhering to a particular school of interpretation automatically disqualifies one from serving as a judge.

Granted, I think the ABA has already crossed this line, but let's not legitimatize it, eh?
5.16.2007 3:21am
David M. Nieporent (www):
Daniel, you act as if the ABA is a government organization that has some formal legal role in the process. It isn't; unlike, e.g., its role in accrediting law schools, its role in the nomination process is just custom. It is permitted to -- and cannot be stopped from -- taking ideology into account when rating judges. It isn't "supposed" to do anything.

The only issue is whether it openly admits what it is doing or not.
5.16.2007 6:43am
Anderson (mail) (www):
That said, those who oppose a nominee because of his or her ideology should do so explicitly, not behind dubious accusations of incompetence or ethical impropriety.

Very true.

Re: the ABA, I don't doubt they're more liberal than conservative on average -- tho the degree of their liberalism is exaggerated by those on the far right. But in the recent Michael Wallace case, I think they made the right call. Wallace is well known for being very extreme ideologically, to where *conservative* lawyers I know did not think he could be an impartial judge on his pet issues.

Thus, ideology does go to "qualifications," where the ideology is too strongly held to be set aside on the bench.
5.16.2007 10:37am
Guest 3L (mail):
"As between a technically well-written opinion defending the wrong outcome in an important case and a mediocre opinion defending the right one, there is good reason to prefer the latter."

I think this depends on what one's definition of what the "right" outcome in a given case is. if it is "one that is based in sound legal analysis" then the well-written opinion is to be preferred in most cases. If instead one's definition of the 'right' outcome is "one that conforms to my political ideology" then, of course, ideology should play a large role in judicial nominations.

While I do think that ideology should play a role, I agree with the late Chief Justice Rehnquist that objections based on ideology, while they have a place, are perhaps often misguided. It is often quite difficult to predict how a certain nominee will rule when actually on the bench based on his political affiliation or supposed ideology. For example, Justices Brennan, Stevens, and Souter were all nominated by Republicans, although they turned out to be quite liberal when on the Court.
5.16.2007 10:38am
Daniel Chapman (mail):
David: Obviously, but why do we care what a private organization thinks about a nominee's ideology? Why not ask the ACLU? The only CUSTOMARY reason the ABA is involved in the process is to rate the qualifications, and if they're going to move beyond that, their opinion should be given no more weight than any other interest group.

I really thought it went without saying that they're allowed to have their opinion, but my point was "why should we care?"
5.16.2007 11:15am
David M. Nieporent (www):
Daniel: Well, what do you mean "we"? I don't care, and Bush doesn't either, as he dropped their pseudo-formal role in the process. They still issue their opinions, and so does PfAW and the Alliance for Justice and everyone else. And I'm sure liberals take them very seriously and conservatives not so much.
5.16.2007 12:19pm
Patrick Wright (mail):
The ABA's role in the judicial nomination process is a vestige of a time when it was not a de-facto arm of the Democratic Party. I don't know if its membership has dipped on either actual members basis or on a percentage of practicing lawyers basis since it has become politicized, but I do know many lawyers that have either not joined or quit for that reason. Its recommendations should carry no more weight than any other interest group.

Unfortunately, many GOP Senators take a short-term view and hype the rare "conservative" judicial nominee who gets a good rating from the ABA, which has the effect of legitimizing its role. It would be better if the GOP Senators would just ignore it and make it clear that it is no different than any other left-leaning interest group.
5.16.2007 12:57pm
Christopher Cooke (mail):
The ABA's role in commenting on judicial nominees dates back to 1947, when its membership was dominated by white southern conservative male lawyers, and NY/Boston/Philly/DC big firm lawyers, which at the time were dominated by conservative white protestant males (having excluded jewish and catholics, and all minorities and women, from their partnership ranks).

So, the ABA was truly part of the conservative, clubby establishment that composed the US Senate and the power-brokers in Washington D.C. This composition remained largely unchanged until the late 1970s.

As the ABA diversified its membership, its politics changed. Now, it is a much more diverse organization, with conservatives and liberals embraced in its ranks. But, it still kept its quasi-official role as rater of judicial nominees. But, it didn't really become "controversial" until (1) some members of the ABA's committee on judicial nominees rated Bork unqualified to sit on the Supreme Court, based on his ideology; and (2) the ABA, as an organization, began to oppose some of the Reagan and Bush Administration's pet projects, such as changes to habeas corpus procedure, and an end to affirmative action. So, that pissed off the conservative Republicans who make up the current Bush Administration and the Federalist Society, and they began their campaign to end the ABA's role in evaluating judicial nominees.

Of course, the ABA's role has been criticized by liberal groups and politicians as well, such as when it gave Roberts a "Well-qualified" rating to serve on the Supreme Court, and when it gave a low rating to judicial nominees supported by them (Sen. Carol Moseley Braun denounced the ABA for one of its ratings of someone she sought to have appointed to the federal bench in Illinois). But, you never hear these facts from the Federalist society types, which is ironic because their organization really has much more influence now on the judicial appointments under Bush than the ABA. Maybe it is natural for a competitor organization such as the Federalist Society to bash the ABA.
5.16.2007 1:38pm
Steve:
But the ABA, liberal-leaning though it may be, doesn't take ideology into account. I have no reason to question Prof. Lindgren's study, but if I conducted a similar study that showed white judges get higher ratings than similarly-qualified black judges, would you say that proves the ABA is taking race into account? What you'd probably say, to the extent you deemed the findings significant, is that this demonstrates an unconscious bias and we should see if there's any way to fix it.

And it's worth noting that the committee which rates judges has plenty of conservative representation. Yet when that committee UNANIMOUSLY deemed Michael Wallace unqualified, there was a massive hue and cry from the conservative websites like confirmthem.com regarding the "liberal" ABA. If you had a liberal majority on the committee rating a candidate unqualified over the objections of the conservative minority, you'd have a good case, but sadly there doesn't seem to be a lot of rationality out there where the ABA is concerned. Like all supposedly liberal institutions, they must be razed to the ground and the earth salted.
5.16.2007 1:38pm
Patrick Wright (mail):
I have not suggested and will not suggest that the ABA be abolished. But the claim that is a neutral arbiter of judicial qualification is difficult to defend.

Christopher Cook notes that occasionally the ABA give good ratings to judges that liberals dislike and occasionally gives bad ratings to judges liberals like and then states:


"But, you never hear these facts from the Federalist society types, which is ironic because their organization really has much more influence now on the judicial appointments under Bush than the ABA. Maybe it is natural for a competitor organization such as the Federalist Society to bash the ABA."


Two points. First, the argument presented is not that the ABA always makes the left happy, just that it often does. Second, to my knowledge, no Senator has publicly held up a judicial nominee so as to wait for the Federalist Society's qualification determination.

Should the ABA's opinion be considered by the Senate? Sure. But just like any other interest group. The ABA is not an organization that speaks for all lawyers, it speaks for all lawyers who voluntarily join. There is no rational reason it should have a special role in the nomination process.
5.16.2007 2:00pm
Patrick Wright (mail):
Oops forgot the "e" at the end. Sorry Christopher.
5.16.2007 2:02pm
Daryl Herbert (www):
This is a little bit like the FHA case from yesterday.

Senatators are allowed to discriminate, but they don't want to actually communicate that they are discriminating.

And I suppose the ABA plays the role of Roommates.com
5.16.2007 2:12pm
Christopher Cooke (mail):

no Senator has publicly held up a judicial nominee so as to wait for the Federalist Society's qualification determination.

That is because the Federalist Society's members are already at the DOJ, and picking the nominees for Bush. The Senators don't have to ask the Federalist Society for its views on Bush's nominees, since the Federalist Society's members have picked the nominees. The ABA does not have any comparable role. My main point is that the ABA is not like People for the American Way, which is a liberal special interest group, nor is it like the Federalist Society, which is a conservative special interest group. Its membership is more diverse and includes liberals and conservatives.

The ABA's judicial evaluations committee also spends considerable time investigating a nominee's background, opinions and qualifications, much more I would bet than any member of the Senate Judiciary Committee does. That is why many Senators want to have the ABA's input on a nominee. Of course, none of this means that you have to agree with the ABA's rating of a nominee, or approve of its role in this process. My point is mainly that it is false to depict the ABA a "liberal" group that is out to get conservative nominees.
5.16.2007 2:14pm
Patrick Wright (mail):
Does the ABA have members that are conservative? Yes. Do the ABA take conservative positions? Not many. Its position on the judicial lightning rods are generally in line with the Democratic Party's views. My perception, without statistical data to back it up, is that its qualified/not qualified recommendations tilt towards the political views that a majority of its members have. Thus, it is not a neutral arbiter.

Are there Democrats/liberals in the Chamber of Commerce? I have to assume so. Should the Chamber be given special rights in judicial nominations? How about to the NLRB? Clearly, it has both conservative and liberals, so how could anyone accuse it of bias?
5.16.2007 2:23pm
Andrew Hyman (mail) (www):
Ilya's example of John Rutledge is bogus, and has been debunked, for example, here. Rutledge was a Supreme Court Justice prior to being nominated for Chief Justice, and he was going around making extremely politicized speeches against the Jay Treaty. Thus, the Senate rejected his nomination in part BECAUSE he wore ideology on his sleeve, and behaved in an injudicious manner. There were also mental health concerns, and indeed he attempted suicide shortly after his nomination was rejected.

Ilya's other point is also not well-founded. He says that the framers must have meant for the President and Senate to analyze a nominee's politics, or else the framers would not have given the jobs of nomination and confirmation to political actors. Quite the contrary, these jobs were given to political actors in part because the framers understood that the political actors would be jealous of their prerogatives, and would not confirm politicized nominees who would usurp the political role of the elected branches.
5.16.2007 2:52pm
David M. Nieporent (www):
Andrew, I can't open that page, but I don't understand (a) why you think that Rutledge being rejected for making politicized speeches "debunks" the example, and (b) it's Schumer's example, not Ilya's.
5.16.2007 4:49pm
JM Hanes (mail):
"On this issue (if on little else), I agree with Democratic Senator Charles Schumer"

LOL! I remember Schumer making the same point in an open hearing and thinking how refreshing! (Didn't realize that You Were There yourself, though!) Alas, having decided Schumer was a guy to watch, I also got the impression that the fresh-faced Senator from New York was promptly, and privately, taken to the woodshed by his political seniors. He never committed such frankness to the record again.

While a distinction between judicial ideology and political ideology would be well worth making in any discussion of confirmation standards, Schumer nails what really concerns me most:
Unfortunately, the taboo has led senators who oppose a nominee for ideological reasons to justify their opposition by finding nonideological factors, like small financial improprieties from long ago.
Of course, even Schumer is painting a pretty face on the malicious treatment of nominees which includes everything from fabricated charges of racism to outright personal & professional slander.

Political polarization is far less corrosive than the flagrant, fundamental hypocrisy at the very heart of a confirmation process where lives and reputations are repeatedly and indiscriminately savaged in service to the patent fiction of ideological neutrality.
5.16.2007 5:33pm
JM Hanes (mail):
Oops! Apologies for a spell of blogger confusion; apparently You Were Not There after all, EV was at the hearing I cited.
5.16.2007 5:44pm
Andrew Hyman (mail) (www):
David, Professor Somin prefaced his Schumer quote by saying, "I agree with Democratic Senator Charles Schumer..." Therefore I think it's perfectly fair to infer that Professor Somin is joining Schumer in citing the Rutledge example.

Regarding Rutledge, check out this link to a report of the Congressional Research Service.

Rutledge became Chief Justice on July 1 of 1795, by recess appointment. Then, on July 16 of 1795, Rutledge gave a highly controversial speech denouncing the Jay Treaty with England. He reportedly said in the speech "that he had rather the President should die than sign that puerile instrument — and that he preferred war to an adoption of it." This is a sitting Chief Justice of the United States speaking. It was his non-judicial temperament, and his interference in political matters, that caused the Senate to reject his nomination on December 15, 1795.

Vice President John Adams wrote to Abigail Adams that the Senate's rejection of Rutledge "gave me pain for an old friend, though I could not but think he deserved it. Chief Justices must not ... inflame the popular discontents which are ill founded, nor propagate Disunion, Division, Contention and delusion among the people." Rutledge attempted suicide, shortly before resigning as Chief Justice on December 28 of 1795, thus lending credibility to earlier accusations that he was mentally imbalanced.

To use the Rutledge example as some sort of precedent for the Senate to take ideology into account is a huge mistake. A sitting Chief Justice simply has no business saying "that he had rather the President should die than sign that puerile instrument — and that he preferred war to an adoption of it."
5.16.2007 8:08pm
Lev:
]That said, those who oppose a nominee because of his or her ideology should do so explicitly, not behind dubious accusations of incompetence or ethical impropriety.

Sure, but most people deal with things while coming from the background and experiences they are most familiar with. Senators are not familiar with constitutional ideology, but they are very familiar with incompentence and ethical impropriety.
5.17.2007 12:55am