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.