Prepared Statement of Laurence H. Tribe
Tyler Professor of Constitutional Law
Harvard Law School (1)
Senate Judiciary Committee
Subcommittee on Administrative Oversight and the Courts
June 26, 2001
Should Ideology Matter?: Judicial Nominations 2001
(with Special Emphasis on the Confirmation of Supreme Court Justices)
I am honored to have been invited to appear before this Subcommittee of the Senate Judiciary Committee to shed whatever light I can on the extremely important, and hopefully not too timely, topic of the Senate's role in the consideration of presidential nominations to the Supreme Court of the United States. I say "hopefully not too timely" because I think it wise of the Senate, with such guidance as the Senate Judiciary Committee through the agency of this Subcommittee can provide, to focus its attention now -- not when a vacancy arises or a name is put forward -- on the criteria to be applied in the confirmation process, and particularly on the role of ideology in that process.
There is a difficult trade-off here, to be sure. In Washington, as elsewhere, the squeaky wheel gets the grease. Focusing meaningful attention on an issue before it becomes a problem, much less a crisis, is difficult in the best of circumstances. Doing so when the issue is as abstract and complex as that of confirmation criteria for Supreme Court justices is more difficult still. Yet waiting until the matter is upon us, complete with a name or a short list of names, with interest groups and spinmeisters formidably arrayed on both sides, assures that the discussion will resemble a shouting match more than a civil conversation, and that every remark will be filtered through agenda-detectors tuned to the highest pitch. On balance, I believe that addressing the question of the Senate's proper role under a veil of ignorance -- ignorance as to precisely when a vacancy will first arise, which of the sitting justices will be the first to depart, and which name or names will be brought forth by The White House -- seems likeliest to lead to fruitful reflection on how to proceed when the veil is lifted and we are all confronted with the stark reality of specific names and all that they might portend for the republic.
It is understandable that, partly because of the seemingly abstract and speculative character of such a discussion in the absence of any actual nominee, and partly because the more immediate question actually facing the Senate Judiciary Committee is how best to evaluate a group of nominees already put forward by the President to fill various vacancies in the federal courts of appeals, this Subcommittee has chosen to cast its inquiry more broadly than a focus on Supreme Court nominations would indicate and has decided to include in its charge the question of what role ideology should play in considering federal judicial nominations generally. For that reason, at the conclusion of my observations about my principal topic -- that of Supreme Court nominations -- I will offer a few thoughts about the broader question that is of interest to the Subcommittee. But because I want to preserve to the degree possible the distinct advantages of separating the general question of criteria from any particular nominee or set of nominees, I will carefully avoid saying anything about any pending nomination and will, until the end of my remarks, discuss only the matter of nominations to the Supreme Court.
When my book "God Save This Honorable Court" was published in 1985 defending an active role for the Senate in the appointment of Supreme Court Justices, the Court was delicately balanced, with liberals like William Brennan and Thurgood Marshall offsetting conservatives like William Rehnquist and Antonin Scalia. Yet, on the inevitable book tour, I found quite a few otherwise well informed people wondering why the composition of the Supreme Court was all that big a deal, and why it shouldn't suffice for the Senate simply to make sure that the President wasn't packing the Court with cronies and with mediocrities. Having satisfied itself of the professional qualifications and character of the President's nominee, some people wondered, why should the Senate be concerned with that nominee's philosophical leanings or ideological predispositions?
People seemed to view things differently when they were exposed to the historical background showing that the Framers contemplated a much more central role for the Senate in this process, and when they learned that it was mostly the unwieldiness of having a collective body like the Senate make the initial nomination that led the Framers, at the last minute in the drafting process, to entrust the nomination to the President and to leave the Senate with the task of deciding whether to confirm or reject; that, even in the final version of the Constitution as ratified in 1789, the Senate's task was not left wholly passive (deciding between a thumbs-up and a thumbs-down) but was cast as the role of giving its "advice and consent;" and that, with the exception of an uncharacteristic lull in the last century, the Senate has traditionally exercised its advice and consent function with respect to the Supreme Court in a lively and engaged manner, concerning itself not simply with the intellect and integrity of the nominee but with the nominee's overall approach to the task of judging, and often with the nominee's substantive views on the burning legal and constitutional issues of the day. Those who initially assumed the Senate need not concern itself with a nominee's ideology tended to view the matter in a new light when reminded that, both in the formative days of our nation's history, under presidents as early as George Washington, and in recent decades, there has been a venerable tradition in which the Senate has played anything but a deferential role on Supreme Court nominations.
All of that registered with people back in 1985, but it wasn't until the 1987 resignation of Lewis Powell and the confirmation battle later that year over Robert Bork that the concrete stakes in this otherwise abstract controversy came to life for the great majority of the American public. In retrospect, although one can lament the ways in which some interest groups and politicians -- on both sides of the question, frankly -- exaggerated the record bearing on Judge Bork's views and bearing on what kind of Supreme Court Justice he would have made, the fact is that his confirmation hearings represented an important education for large segments of the public on such fundamental matters as the meaning of the due process and liberty guarantees of the Fifth and Fourteenth Amendments to the Constitution, the relevance and limits of the Ninth Amendment's reference to unenumerated rights, the connection between various ways of approaching the Constitution's text and history and such particular unenumerated rights as personal privacy and reproductive freedom, the relationship between a tightly constrained and literalist reading of the Constitution in matters of personal rights and a more open-textured and fluid reading of the Constitution in matters bearing on state's rights, and a host of other topics of enduring significance.
For my own part, as one of the expert witnesses called to testify about Judge Bork's constitutional philosophy and about the consequences for the nation were he to gain an opportunity to implement that philosophy as a Supreme Court Justice, I make no apology for anything I said at the time. Knowing full well that my testimony would put me on the enemies' lists of some extremely powerful people with very long memories, I felt it my duty to testify to the truth as I understood it. I would do the same thing again today. When the Senate finally rejected the nomination of Robert Bork, many of his allies cried "foul" and have since practiced decades of payback politics. Indeed, they have even succeeded, with the aid of some revisionist history, in adding to the vocabulary the highly misleading new verb, "to Bork" -- meaning, "to smear a nominee with distorted accusations about his or her record and views" -- as though the predictions of the sort of justice Robert Bork would have become were in some way misleading or otherwise unfair. But the truth, as Judge Bork's post-rejection writings made amply clear, was just as his critics had indicated. Unless being confirmed would have caused him to undergo a radical conversion -- something on which the nation has a right not to gamble -- his rejection, and the subsequent confirmation of Justice Kennedy in his stead, meant one less member on the far right wing of the Court and left Justice Scalia (later with Justice Thomas) holding down the starboard alone. The nation had held a referendum on the Borkian approach to reading the Constitution of the United States, and the Borkian approach had decisively lost. And, lest it be supposed that I review this history simply to reprise a political episode that was painful for all concerned, I should make plain that my purpose is altogether different. It is to remove the fangs from the verb "to Bork" and to restore some perspective, lest anyone be misled into beginning the debate over the Senate's proper role with the erroneous premise that the Senate should be less than proud of the last instance in which it rejected a Supreme Court nominee on ideological grounds.
Today, it takes very little effort to persuade any informed citizen that the identity of who serves on the Supreme Court of the United States matters enormously -- matters not simply to the resolution of these large questions of how the Constitution is to be approached and how its multiple ambiguities are to be addressed, but as well in the disposition of the most mundane, and yet basic, questions of how we lead our lives as Americans. Whether laws enacted for the benefit of the elderly or the disabled are to be rendered virtually unenforceable in circumstances where the violator is a state agency and the victim cannot obtain meaningful redress without going to federal court; whether people stopped in their cars for minor offenses like failing to have a seatbelt properly attached to a child's car seat may be handcuffed and taken by force to the police station where they are arrested and booked and held overnight; whether police may use sense-enhancing technologies like special heat detectors to peer through the walls of our homes in order to detect the details of what we do there; whether, having recognized that everything we do in the privacy of our homes counts as an intimate detail when it comes to protecting us from various kinds of search and surveillance, judges will nonetheless continue to let state legislatures regulate the most intimate sexual details of what we do behind closed doors with those we love; whether government may forbid the kind of research that might prove essential to the prevention and cure of devastating degenerative diseases whenever that research uses stem cells or other tissues from embryos created in clinics for infertile couples -- embryos that would otherwise be discarded without making such life-generating new knowledge possible; what kinds of campaign finance restrictions are to be permitted when the broad values of democracy seem pitted against the specific rights of individuals and corporations to use their wealth to purchase as much media time as money can buy; who is to be the next President of the United States -- these are just some of the questions whose answers have come to turn on a single vote of a single Supreme Court Justice.
The battle that was fought over the nomination of Judge Bork to become Justice Bork was fought because the general approach to constitutional interpretation that he seemed to represent attracted him to some but frightened an even larger number. Most dramatic among the anticipated consequences of his confirmation would have been the addition of his vote and voice to the far right wing of the Court on such issues as reproductive freedom, which the Constitution of course never mentions in so many words. His confirmation, people came to recognize despite his avowals of open-mindedness on all such matters, would have meant the certain demise of Roe v. Wade, a decision whose most recent application, in last year's "partial birth abortion" case from Nebraska, was, after all these years, still 5 to 4 -- as are a large number of crucial decisions about personal privacy, gender discrimination, sexual orientation, race-based affirmative action, legislative apportionment, church-state separation, police behavior, and a host of other basic issues.
After the Supreme Court's highly controversial and I believe profoundly misguided performance last December in the case of Bush v. Gore -- in which I should acknowledge I played a role as author of the briefs for Vice President Gore and as oral advocate in the first of the two Supreme Court arguments in the case -- it's difficult to find anyone who any longer questions why it matters so much who serves on the Court. The significance of Bush v. Gore in this setting doesn't depend on anybody's prediction of who would have won the vote-count in Florida had the counting gone on without the Supreme Court's dramatic and sudden interruption on December 9, 2000, or of who would have been chosen the next President by Congress this January 6 if the Supreme Court had let the constitutional processes operate as designed and if competing electoral slates had been sent from Tallahassee, Florida to Washington, D.C. The great significance of the case is to underscore that, by a margin of a single vote, the branch of our government that is least politically accountable -- wisely and designedly so, when matters of individual and minority rights or of basic government structure are at stake -- treated the American electorate and the electoral process with a disdain that a differently composed Court would have found unthinkable. So it was that, when push came to shove, and the Supreme Court's faith in democracy was tested, the Supreme Court blinked. It distrusted the people who were doing the counting, it distrusted the state judges, it distrusted the members of Congress to whom the dispute might have been thrown if it hadn't pulled down the curtain. And the Court could get away with it, partly because nobody in the House or Senate, to be brutally honest, relished the thought of discharging the constitutional responsibility of deciding which electoral votes to count and then facing his or her own constituents -- and because the people were growing weary of the no longer very sexy or novel topic of dimpled ballots and hanging chads, and Christmas was just around the corner, and, after all, everyone knew that the election was basically too close to call anyway. Lost for some in all of that realism, I fear, was the high price our democracy paid for the convenience of a Court that was willing -- no, not just willing, positively eager -- to take those burdens from our shoulders and simply decree a result. Among the results is an unprecedented degree of political polarization in the Court's favorability rating with the public -- a rating that now stands roughly twice as high among Republicans as among Democrats, surely an ominous gap for the one institution to which we look for action transcending politics.
This isn't the time or place to debate the details of Bush v. Gore, a subject about which I have written elsewhere; I stress the case because it shows at least as dramatically as any case possibly could just how much may depend on the composition of the Court; how basic are the questions that the Court at times decides by the closest possible margins; and how absurd are the pretensions and slogans of those who have for years gotten away with saying, and perhaps have deceived even themselves by saying, that the kinds of judges they want on the Court, the "restrained" rather than "activist" kinds of judges, the kinds of judges who don't "legislate from the bench," are the kinds exemplified by today's supposedly "conservative" wing of the Court, led by Chief Justice Rehnquist and supported in area after area by Justices O'Connor, Scalia, Kennedy, and Thomas. Those are, of course, the five justices who decided the presidential election of 2000. They are, as well, the five justices who have struck down one Act of Congress after another -- invalidating federal legislation at a faster clip than has any other Supreme Court since before the New Deal -- on the basis that the Court and the Court alone is entitled to decide what kinds of state action might threaten religious liberty, might discriminate invidiously against the elderly or the disabled, or might otherwise warrant action by Congress in the discharge of its solemn constitutional power under Section 5 of the Fourteenth Amendment to determine what legislation is necessary and appropriate to protect liberty and equality in America.
Some might be tempted, after watching the Court perform so poorly in the pit of presidential politics, and after witnessing it substitute its policy judgments for those of Congress in one legislative arena after another, to imagine that, if we could only wave a magic wand and remove all ideological considerations from judicial selection -- both on the part of the President in making nominations and on the part of the Senate in the confirmation process -- somehow the Olympian ideal of a federal judiciary once again above politics and beyond partisan reproach could be restored. For several reasons, that is a dangerous illusion. First, there's no way for the Senate to prevent the President from doing what Presidents from the beginning of the republic have asserted the right to do, and what some Presidents have done more successfully than others: pick nominees who will mirror the President's preferred approach to the Constitution's vast areas of ambiguity. Second, in dealing with those areas of ambiguity, there may or may not be any right answers, but there most assuredly are no unique or uncontroversial answers; invariably, in choosing one Supreme Court nominee rather than another, one is making a choice among those answers, and among the approaches that generate them. And third, with a Supreme Court that is already so dramatically tilted in a rightward direction, anything less than a concerted effort to set the balance straight would mean perpetuating the imbalance that gave us not only Bush v. Gore but the myriad decisions in the preceding half-dozen years in which the Court thumbed its nose at Congress and thus at the American people.
In an accompanying memorandum that I prepared for distribution this April to a number of members of the Senate, I explore in greater detail how these recent Supreme Court encroachments on congressional authority have come about and what they signify. For purposes of my statement today, suffice it to say that such encroachments are the antithesis of judicial restraint or modesty; that the justices who have engineered them are the most activist in our history; that holding them up as exemplars of jurists who would never dream of "legislating from the bench" is, to put it mildly, an exercise in dramatic license; and that the judgments the Senate will have to make about the inclinations and proclivities of prospective members of the Supreme Court must be considerably more nuanced than the stereotypical slogans and bumper stickers about activism vs. restraint, and even liberalism vs. conservatism, can possibly accommodate.
Some scholars, including most prominently University of Chicago Law Professor Cass Sunstein, who will also be testifying before you at this hearing, have powerfully argued that an active, nondeferential, role for the Senate in evaluating Supreme Court nominees is called for, quite independent of Bush v. Gore, by the way in which the federal judiciary in general, and the Supreme Court in particular, have been systematically stacked over the past few decades in a particular ideological direction -- a direction hostile, for example, to the enactment of protective congressional legislation under Section 5 of the Fourteenth Amendment, and hostile as well to other ostensibly "liberal" or "progressive" judicial positions, on topics ranging from privacy to affirmative action, from states' rights to law enforcement. For Professor Sunstein, who will of course speak most accurately and fully for himself, the active role the Senate ought to play is exactly as it would have been had Bush v. Gore never been decided.
Other scholars, most prominently Yale University Law Professor Bruce Ackerman, argue that Bush v. Gore has thrown the process of judicial appointment into what Professor Ackerman calls "constitutional disequilibrium," so that, instead of two independent structural checks on a necessarily unrepresentative and politically unaccountable Supreme Court, we are now down to just one. Because, in his view, the current Court must be acknowledged to have "mediated" the "President's relationship to the citizenry" -- by helping put him in office by a 5 to 4 vote -- "only the Senate retains a normal connection to the electorate," and this demands of that body, as Professor Ackerman sees it, that it shoulder an unusually heavy share of the burden of democratic control, by the people acting through the political branches, of the judicial branch to which we ordinarily look to hold the balance true. Translated into an operational prescription, the Ackerman position would recommend that the Senate simply refuse to confirm any new justices to the Court before President Bush, as Professor Ackerman puts it, "win[s] the 2004 election fair and square, without the Court's help." As a fallback, Professor Ackerman would urge the Senate to consider any nominations President Bush might make to the Court during his current term on their own merits, but without what Ackerman describes as "the deference accorded ordinary presidents."
Although I am intrigued by Professor Ackerman's suggestion, it seems to me the wrong way to go, either in its strongest form or in its fallback version. The strongest form would make sense, I think, only if we were convinced that the justices who voted with the majority in Bush v. Gore acted in a manner so corrupt and illegitimate, so devoid of legal justification, that one could say they essentially installed George W. Bush as president in a bloodless but lawless coup. But if we believed that, then the remedy of not letting the leaders of that coup profit from their own wrong -- of denying them the solace of like-minded successors as they depart the scene -- would be far too mild. If we thought the Bush majority guilty of a coup, we should have to conclude that they were guilty of treason to the Constitution, and that they should be impeached, convicted, and removed from office.
Believing that what the Bush v. Gore majority did was gravely wrong but not that it amounted to a coup or indeed anything like it -- believing that the majority justices acted not to install their favorite candidate but out of a misguided sense that the nation was in grave and imminent peril unless they stopped the election at once -- one would have to look to the Ackerman fallback position. But all it tells us is something that I argued was the case anyway as early as 1985 -- that the Senate should not accord any special deference to nominations made by any President to the Supreme Court. Indeed, I go further than does Professor Sunstein in this respect. As I understand his position, he would have the Senate withhold such deference for reasons peculiar to the recent history of the nation and of appointments to the federal bench and especially to the Supreme Court over the past few decades. Had we not lived through a time of Republican Presidents insistent on, and adept at, naming justices who would carry on their ideological program in judicial form, sandwiching Democratic Presidents uninterested in, or inept at, naming justices similarly attuned to their substantive missions, Professor Sunstein would apparently urge that the Senate give the President his head in these matters and serve only in a backseat capacity, to prevent rogues and fools, more or less, from being elevated to the High Court.
In a world in which each position on the Supreme Court might be given to some idealized version of the wisest lawyer in the land -- the most far-sighted and scholarly, the most capable of clearly explaining the Constitution's language and mission, the most adept at generating consensus in support of originally unpopular positions that come to be seen as crucial to the defense of human rights -- perhaps we could afford in normal times to accept a posture of Senatorial deference, with exceptions made in special historical periods of the sort some believe we have been living through. But if we ever lived in a world where such a universal paragon of justice could be imagined, and in which the kinds of issues resolved by Supreme Court Justices were not invariably contested, often bitterly so, between competing visions of the right, that day has long since passed.
Today, regardless of whether past Presidents have acted or failed to act so as to produce a Supreme Court bench leaning lopsidedly in a rightward direction, and regardless of whether a majority of the current Court has acted in such a way as to render the President whom it helped to elect less entitled to deference than usual in naming the successors of the Court's current members, the inescapable fact is that the President will name prospective justices about whom he knows a great deal more than the Senate can hope to learn -- justices whose paper trail, if the President is skillful about it, will reveal much less to the Senate than the President thinks he knows. Given his allies and those to whom he owes his political victory, as well as those on whom he will need to depend for his re-election, the incumbent President, if those constituencies expect him to leave his mark and therefore theirs upon the Court, will try to name justices who will fulfill the agenda of those constituencies -- in the case of President Bush, the agenda of the right -- without seeming by their published statements or their records as jurists to be as committed to that agenda as the President will privately believe them to be. Presumably, the incumbent President will look for such nominees among the ranks of Hispanic jurists, or women, or both, in order to distract the opposition and make resistance more painful. And certainly this President, like any other in modern times, will select nominees who have already mastered or can be coached in the none too difficult game of answering questions thoughtfully and without overt deception but in ways calculated to offend no-one and reveal nothing.
In this circumstance, to say that the burden is on those who hold the power of advice and consent to show that there is something disqualifying about the nominee, that there is a smoking gun in the record or a wildly intemperate publication in the bibliography or some other fatal flaw that can justify a rallying cry of opposition, is to guarantee that the President will have the Court of his dreams without the Senate playing any meaningful role whatsoever. Therefore, if the Senate's role is to be what the Framers contemplated, what history confirms, and what a sound appreciation for the realities of American politics demands, the burden must instead be on the nominee and, indeed, on the President. That burden must be to persuade each Senator -- for, in the end, this is a duty each Senator must discharge in accord with his or her own conscience -- that the nominee's experience, writings, speeches, decisions, and actions affirmatively demonstrate not only the exceptional intellect and wisdom and integrity that greatness as a judge demands but also the understanding of and commitment to those constitutional rights and values and ideals that the Senator regards as important for the republic to uphold.
On this standard, stealth nominees should have a particularly hard time winning confirmation. For proving on the basis of a blank slate the kinds of qualities that the Senate ought to demand, with a record that is unblemished because it is without content, ought to be exceedingly difficult. Testimony alone, however eloquent and reassuring, ought rarely to suffice where its genuineness is not confirmed by a history of action in accord with the beliefs professed. And testimony, in any event, is bound to be clouded by understandable reservations about compromising judicial independence by asking the nominee to commit himself or herself too specifically in advance to how he or she would vote on particular cases that might, in one variant or another, come before the Court. Interestingly, we do not regard sitting justices as having compromised their independence by having written about, and voted on, many of the issues they must confront year in and year out; the talk about compromising judicial independence by asking about such issues sometimes reflects unthinking reflex more than considered judgment. But on the assumption that old habits die hard, and that members of the Senate Judiciary Committee will continue to be rather easily cowed into backing away from asking probing questions about specific issues that might arise during the nominee's service on the Court, it should still be possible to formulate questions for any nominee, including tough follow-up questions, at a level of generality just high enough so that the easy retreat into "I'm sorry, Senator, I can't answer that question because the matter might come before me," will be unavailing. And, to the extent such slightly more general questions yield information too meager for informed judgment, the burden must be on the nominee to satisfy his or her interlocutors that the concern underlying the thwarted line of questioning is one that ought not to disturb the Senator. That satisfaction can be provided only from a life lived in the law that exemplifies, rather than eschewing, a real engagement with problems of justice, with challenges of human rights, and with the practical realities of making law relevant to people's needs. When a nominee cannot provide that satisfaction -- when the nominee is but a fancy resume in an empty suit or a vacant dress, perhaps adorned with a touching story of a hard-luck background or of ethnic roots -- any Senator who takes his or her oath of office as seriously as I know, deep down, all of you do, should simply say, "No thanks, Mr. President. Send us another nominee."
What this adds up to is, of course, a substantial role for ideology in the consideration of any Supreme Court nominee. It would be naive to the point of foolhardiness to imagine that the President will be tone-deaf to signals of ideological compatibility or incompatibility with his view of the ideal Supreme Court justice; ideology will invariably matter to any President and must therefore matter to any Senator who is not willing simply to hand over to The White House his or her proxy for the discharge of the solemn duty to offer advise and consent.
As a postscript on the distinct subject of circuit court nominees, it seems worth noting that, although such nominees are of course strictly bound by Supreme Court precedents and remain subject to correction by that Court, and although there might therefore seem to be much less reason for the Senate to be ideologically vigilant than in the case of the Supreme Court, three factors militate in favor of at least a degree of ideological oversight even at the circuit court level.
First, well under 1% of the decisions of the circuit courts are actually reviewed by the Supreme Court, which avowedly declines to review even clearly erroneous decisions unless they present some special circumstance such as a circuit conflict. Especially if the circuit courts tend toward a homogeneity that mirrors the ideological complexion of the Supreme Court, that tribunal is exceedingly unlikely to use its discretionary power of review on certiorari to police lower federal courts that stray from the reservation in one direction or another; it will instead focus its firepower on bringing the state courts into line and resolving intolerable conflicts among the lower courts, state and federal.
Second, there are a great many gray areas in which Supreme Court precedents leave the circuit courts a wide berth within which to maneuver without straying into a danger zone wherein further review becomes a likely prospect. Even though no individual circuit court judge is very likely to use that elbow room in order to move the law significantly in one direction or another without a check from the Supreme Court, the overall balance and composition of the circuit court bench can have a considerable effect, in momentum if nothing else, on the options realistically open to the Supreme Court and thus to the country.
Third, in the past few decades, the circuit courts have increasingly served as a kind of "farm team" for Supreme Court nominations. On the Court that decided Brown v. Board of Education in 1954 there sat not a single justice who, prior to his appointment to the Supreme Court, had ever served in a judicial capacity. Governors, Senators, distinguished members of the bar, but no former judges. Today, however, rare is the nominee who has not previously served in a judicial capacity, most frequently on a federal circuit court. On the current Court, only the Chief Justice lacked prior judicial experience when he was first named a justice; and, of the other eight justices, all except Justice O'Connor, who had served as a state court judge, were serving on federal circuit courts when appointed to the Court. The reasons for this change are many; they include, most prominently, the growing recognition that ideology matters and that service on a lower court may be one way of detecting a prospective nominee's particular ideological leanings. Whatever the reasons, the reality has independent significance, for it means that any time the Senate confirms someone to serve on a circuit court, it may be making a record that, in the event the judge should later be nominated to the Supreme Court, will come back to haunt it. "But you had no trouble confirming Judge X to the court of appeals for the Y circuit," supporters of Supreme Court nominee X are likely to intone. Keeping that in mind will require the Senate to give fuller consideration to matters of ideology at the circuit court level than it otherwise might.
The primary ideological issue at the circuit court level, however, should probably remain the overall tilt of the federal bench rather than the particular leanings of any given nominee viewed in isolation. In a bench already tilted overwhelmingly in one direction -- today, the right -- a group of nominees whose ideological center of gravity is such as to exacerbate rather than correct that tilt should be a matter of concern to any Senator who does not regard the existing tilt as altogether healthy.
And one needn't be particularly liberal to have concerns about the existing tilt. Just as a liberal who recognizes that people who share his views might not have all the right answers ought to be distressed by a federal bench composed overwhelmingly of jurists reminiscent of William J. Brennan, Jr. or William O. Douglas -- or even by a federal bench composed almost entirely of liberals and moderates and few conservatives -- and just as such a liberal should doubt the wisdom, in confronting such a bench, of adding a group of judges who would essentially replicate that slant, so too a conservative who is humble enough to recognize that people who share her views might not have a lock on the truth should feel dismayed by a federal bench composed overwhelmingly of jurists in the mold of Antonin Scalia or Clarence Thomas -- or even by a federal bench composed almost entirely of conservatives and moderates and few liberals -- and ought to doubt the wisdom, in dealing with such a bench, of adding many more judges cut from that same cloth. The fundamental truth that ought to unite people across the ideological spectrum, and that only those who are far too sure of themselves to be comfortable in a democracy should find difficult to accept, is that the federal judiciary in general, and the Supreme Court in particular, ought in principle to reflect and represent a wide range of viewpoints and perspectives rather than being clustered toward any single point on the ideological spectrum.
Indeed, even those who feel utterly persuaded of the rightness of their own particular point of view should, in the end, recognize that their arguments can only be sharpened and strengthened by being tested against the strongest of opposing views. Liberals and conservatives alike can be lulled into sloppy and slothful smugness and self-satisfaction unless they are fairly matched on the bench by the worthiest of opponents. It may even be that the astonishing weakness and vulnerability of the Court's majority opinion in Bush v. Gore, and of the majority opinions in a number of the other democracy-defying decisions in whose mold it was cast, are functions in part of the uniquely narrow spectrum of views -- narrower, I think, than at any other time in our history -- covered by the membership of the current Court -- a spectrum which, on most issues, essentially runs the gamut from A through C. On a Court with four justices distinctly on the right, two moderate conservatives, a conservative moderate, two moderates, and no liberals, it's easy for the dominant faction to grow lazy and to issue opinions that, preaching solely to the converted, ring hollow to a degree that ill serves both the Court as an institution and the legal system it is supposed to lead. It is thus in the vital interest of the nation as a whole, and not simply in the interest of those values that liberals and progressives hold dear, that the ideological imbalance of the current Supreme Court and of the federal bench as a whole not be permitted to persist, and that the Senate take ideology intelligently into account throughout the judicial confirmation process with a view to gradually redressing what all should come to see as a genuinely dangerous disequilibrium.
1. For identification purposes only.