Submitted to the Subcommittee on the Courts, Committee on the Judiciary, United States Senate, September 4, 2001

Mr. Chairman and Members of the Subcommittee:

I am honored by the invitation of the Committee to present this statement on the criteria that should be applied with regard to confirming nominees for lifetime appointments to the federal judiciary. This responsibility, of course, is truly one of the most awesome responsibilities that Senators have.

I begin with two quotations from members of the Supreme Court itself. The first was written by Felix Frankfurter some 70 years ago: "[M]embers of the court are frequently admonished by their associates not to read their economic and social views into the neutral language of the constitution. But the process of constitutional interpretation compels the translation of policy into judgment, and the controlling conceptions of the justices are their ‘idealized political pictures' of the existing social order." A far more recent justice, Stephen Breyer, has put the matter slightly differently but he arrives at same basic conclusion. After first stating that "[p]olitics in our decision-making process does not exist," he distinguished what might be termed "low" from "high" politics. Thus, he said, "By politics, I mean . . . will it help certain individuals be elected?" He quickly went on to say that "[p]ersonal ideology or philosophy is a different matter. . . . Judges have had different life experiences and different kinds of training, and they come from different backgrounds." Most importantly, for our present purposes, is Justice Breyer's forthright comment that "[j]udges appointed by different presidents of different political parties may have different views about the interpretation
of the law and its relation to the world."

Justices Frankfurter and Breyer raise the central issue that Senators must face in passing on presidential nominations to the Judiciary: Judges with different ideologies will shape the Constitution in radically different directions, with effects that are likely to be felt for generations to come. Frankfurter himself, for example, was one of the key
Roosevelt appointments who together rejected the constitutional learning of seventy years and established the basis of congressional regulatory power and federal-state relations that are still very much being felt to this day.

To be sure, Senators must first make sure that nominees to the judiciary meet certain baselines of professional competence. Frankly, however, this is almost never a serious hurdle. Instead, the crucial question before you is what you believe the Constitution of the United States, at least as interpreted by the Supreme Court, should look like years from now. There is no serious doubt that the executive branch, when submitting nominees, is attempting to shape the Constitution to fit its own guiding vision. You must therefore ask if these nominees offer compelling visions of what our constitutional order truly is (or should be). To vary Mark Antony's famous statement, the good and the evil that these men and women do will live long after they leave the bench.

The original framework of the Constitution presumed that the Senate would play an important role in the judicial appointment process and serve as a necessary check and balance to the power of the Executive. This made sense in 1787, when the Constitution was initially drafted. Subsequent developments in our nation's history, however, make the argument for Senate supervision of the President's judicial nominations even stronger and the Senate's role as a check on presidential efforts to transform constitutional meaning even more crucial.

I emphasize two such developments. First, no one in 1787, even if a supporter of the abstract idea of judicial review, could possibly have contemplated the role that courts would come to play in our political life, including decisions, sometimes in quite minute detail, regarding some of the most important political issues before the country. Even more to the point, situated as they were at the very beginning of the great American experiment, citizens did not understand that the work of judges (and, for that matter, of presidents and members of Congress) would greatly reshape the meaning of the Constitution over time. The Constitution that emerged from the New Deal and World War II, for example, is in many ways a substantially different document from the one that existed in the 1820's, when few people imagined a significant congressional role in helping to regulate a national economy and when the United States was still able to maintain a more-or-less detached posture vis-à-vis the intrigues of world politics. And, of course, it is not only the Congress and the President who today possess powers that would have astonished earlier generations. It is the Judiciary as well. One may celebrate this set of developments or regret them, but they comprise the constitutional system that we live under today. No one denies that it matters who is elected to the Executive or the Congress; it would be equal folly to pretend that the particular identity of those who sit on the federal bench is without consequence with regard to the quality of life and liberty our fellow Americans enjoy, both now and in the years to come.

Second, the authors of the 1787 Constitution assumed that there would be no organized political parties, the very idea of which appalled them. They would therefore surely be astounded to learn that presidents deliberately staff the judiciary with people from their own political party in order to promote a distinctive ideological agenda. Indeed, a testament to the pervasiveness of this development is that Justice Breyer's statement quoted at the outset stirs no contemporary sense of outrage and is, instead, quite properly treated as a truism about the reality of what might be called constitutional politics. And, unlike the New Deal, this is scarcely a (relatively) recent development. It was, after all, James Madison himself who became, during the 1790's, one of the leading founders of the Democratic-Republican party that vigorously opposed the Federalist Party headed by Alexander Hamilton. The creation of the party system led to the election fiasco of 1801, when it took the House of Representatives 36 ballots to break the tie vote between the Democratic-Republicans Thomas Jefferson and Aaron Burr. The tie was the direct result of the original Constitution's failure to recognize the existence of political parties, and it led, therefore, to the quick adoption of the Twelfth Amendment, which, by separating the electoral tracks for president and vice-president, also served to recognize the legitimacy of the political party system.

Indeed, by 1801 the Framers' original vision of a judiciary free from partisan influence had collapsed, for precisely the same reasons that led first to the struggle in the House of Representatives and then the adoption of the Twelfth Amendment. After all, almost literally the last thing that the outgoing Federalist President, John Adams, did before leaving office was to pack the judiciary with Federalists, confirmed by a lame-duck and popularly repudiated Federalist Senate. Adams firmly hoped that these new judges would use all the powers at their disposal to put stumbling blocks in the way of the feared Jeffersonians. The most famous such appointment is, of course, John Marshall, whose designation as Chief Justice was understood by one and all to be a powerful political statement. Thus, only a dozen short years after the ratification of the Constitution, the practice of linking judicial appointment to possession of the correct party membership and ideological perspective was firmly established. "Non-partisan" simply does not describe the two centuries of nominating and confirming federal judges.

Both Professors Cass Sunstein and Laurence Tribe, in their earlier testimony to this Committee, have spelled out the role that ideological judgment can legitimately play when considering judicial appointments. I would like to state forthrightly that the point applies to both parties, regardless of whose ox is being gored. In recent years, Republican Senators have put stumbling blocks in the way of confirmation of many of President Clinton's nominees to the judiciary. I cannot offer any other than political objections to this, at least when that opposition was candidly expressed as a good-faith belief that a nominee possessed an unacceptable view of the Constitution. All Senators take an oath to "support" the Constitution, and I have long regarded it as important that everyone—including all elected officials and even ordinary citizens—take seriously their own, non-delegable, obligation to interpret the meaning of the Constitution—and, therefore, to help safeguard what is most important in our constitutional traditions. That means, therefore, at the very least, that every Senator, and particularly those on the Judiciary Committee, must decide what the Constitution, best understood, actually requires in our never-ending quest to realize the great aims of the Preamble and its emphasis on "establish[ing] Justice."

This is, obviously, not an easy task, and, as already acknowledged, reasonable people can certainly disagree. If I disagreed with the Republican opposition to President Clinton's nominees, it was because I do not share their own particular vision of the constitution, not because I think they had a duty to exhibit automatic deference to President Clinton's contrary judgments. Senators of both parties must think through these issues of constitutional interpretation for themselves rather than bow down humbly before a presidential determination as to who should be on the federal judiciary.

It is, therefore, thoroughly legitimate, under the most ordinary of circumstances, for Senators to concern themselves with the direction in which federal judges are reshaping the American Constitution. But these are not ordinary times. Hovering over any discussion of judicial nominations in our day are two central events. The first is that this country is in the midst of a constitutional revolution in areas of federal-state relations and civil rights. Many of the key cases in this constitutional revolution have been decided by narrow 5-4 votes in the Supreme Court. This revolution will be quelled, or it will go into overdrive—with significant consequences for our system of government—depending on the next set of appointments to the federal judiciary.

The second key event is that the occupant of the Oval Office, who by virtue of his position gets to nominate those who will decide the fate of the constitutional revolution, was neither elected by a majority of the American electorate nor, far more to the point, elected even by ordinary operation of our Electoral College system. Instead, he was granted his office by a willful decision of the United States Supreme Court. The five Justices who decided Bush v. Gore—and who, not at all coincidentally, are the architects of the constitutional revolution whose fate is at stake—put themselves in the remarkable position of making sure that the person charged with appointing their colleagues and successors would be the candidate most sympathetic to the ongoing revolution. At the risk of stating the obvious, this is not how the constitutional system of checks and balances, including the vision of a Judiciary removed from politics, was supposed to work.

Bush v. Gore remains the equivalent of a stinking pig in the parlor. One simply cannot calibrate the responsibility of Senators at this crucial moment in our Nation's history without taking it into account. Senators who share my concerns about the way that the United States Constitution has been rewritten over the last decade and who believe that the Court's intervention in the political process last December was an especially ugly breach of judicial propriety must not ignore its implications for their constitutionally assigned role as partners in the appointments process.

In at least one way the aftermath of the 2000 election was even more disturbing than its counterpart 200 years ago. In 1800 no one doubted that the House of Representatives was the proper body to decide the election dispute. In December 2000, however, we were presented with the spectacle of five Republican judges using their power to shortcut not only the process of counting the votes in Florida but also, in effect, to render irrelevant the possibility that Congress, exercising its powers under both Article II and the Twelfth Amendment, would resolve any continuing disputes and, as in 1800 and 1824, name the president (who, of course, might well have been George W. Bush). One need not accuse them of consciously betraying their oaths of office. But their choice to intervene as they did placed them in a patent conflict of interest: No one could seriously doubt that the five justices in the majority relished the prospect that the White House would be inhabited by a Republican who could, among other things, nominate their successors. And, of course, in December 2000, it appeared that the Senate would continue to be Republican. The very possibility that the five justices were completely sincere in their conscious belief that they decided Bush v. Gore on the basis of the law alone simply underscores the point that judges are human beings like the rest of us, with a propensity to read the Constitution, if at all possible, in a way that provides "happy endings." In this case, the happy ending is a Republican president picking Republican justices to be confirmed by a Republican Senate.

Many law professors, of whom I am one, regard Bush v. Gore as a patently illegitimate decision, shoddily reasoned; and many of us believe that its illegitimacy taints Mr. Bush's own status as our President. Even if there is something to be said for the Senate's extending deference to a President when submitting nominees for the federal bench, that is really quite irrelevant in the present circumstance.

As a practical matter, there is little that one can do about Bush v. Gore. Mr. Bush does indeed occupy the White House, and no one seriously suggests that he ought not be accepted as our President.

But it is absolutely incumbent on those who were properly appalled by the majority's behavior last December to stand vigilant against allowing it to profit from its own wrong by acquiescing to the packing of the federal judiciary with nominees who are committed to extending the majority's constitutional revolution.

The prior testimony of Professors Sunstein and Tribe included excellent discussion of the contours of this ongoing revolution, and I will not repeat their arguments. I am, however, submitting today the text of an article co-authored by Yale Law School Professor Jack M. Balkin and myself, entitled Understanding the Constitutional Revolution, which will appear next month as the lead article in the Virginia Law Review. In it we set out our own understanding of the situation that faces us, including the implications of Bush v. Gore for the appointment process. We do not attack the good faith of those who believe that the current majority manifests a correct constitutional vision. We respectfully disagree, and we present an overview of what we believe to be a far better perspective. No doubt the current majority and its supporters would say that it is our own vision that deserves to be rejected. Perhaps they are right, but the central point is that the adequacy of constitutional vision of judicial nominees should be the primary concern of members of this Committee.

I have emphasized my general agreement with the testimony offered by my friends and distinguished colleagues Cass Sunstein and Laurence Tribe. I do, however, disagree with them in at least one important respect: Both of them evoke metaphors of maintaining (or restoring) "balance" to the Court and achieving the right "mixture" of viewpoints. Each seems to suggest that it is especially important to prevent the Court from becoming too unbalanced in favor of right-wing perspectives. The problem with the imagery of "balance" is that we have absolutely no way to figure out what a proper balance is. Franklin Delano Roosevelt had no obligation to preserve a mixture of New Dealers and opponents of the New Deal in his judicial appointments in the 1940's. His authority to appoint Justices like Felix Frankfurter (and Senator Hugo Black and his Attorneys General Robert Jackson and Frank Murphy, among others) came from his repeated victories at the polls, which suggested, among other things, that Americans viewed as necessary and proper a variety of changes in the basic structure of our political system, ranging from a significantly strengthened Congress to the acceptance of the validity of an elaborate system of administrative agencies charged with implementing congressional enactments. In like fashion, I see no reason (nor did anyone suggest at the time) that President Lyndon Johnson in 1967 should have nominated a conservative (or even moderate) segregationist instead of Thurgood Marshall in order to achieve some balance on racial issues in the increasingly liberal Warren Court. Johnson's 1964 landslide victory, coupled with equally impressive legislative victories by the Democratic Party in 1964 and 1966, established all the authority that was necessary to promote an agenda of racial equality in naming new members of the federal judiciary. The same thing might be said, incidentally, about the nomination and confirmation of Antonin Scalia during the Reagan Administration, shortly after his smashing victory in 1984 and, equally important, the return of a Republican Senate. The problem today is that George W. Bush lacks precisely this sort of political authority to throw the Court further to the right and to reshape the meaning of the Constitution for generations to come. George W. Bush is not Ronald Reagan, and the disputed election of 2000 is not the landslide of 1984. And, frankly, given the 200-year acceptance of the legitimacy of political parties, Democratic members of the Senate are under no duty to pretend that they are not the majority of this venerable institution.

Whether "balance" is really the issue is underscored by a question raised by Illinois Senator Stephen A. Douglas in one of the most electric moments of our political history, his famous debates with Abraham Lincoln. Speaking of the Court's 1857 decision in Dred Scott, which in effect held unconstitutional the platform of the newly formed Republican Party represented by Lincoln, Douglas noted that "Mr. Lincoln cannot conscientiously submit, he thinks, to the decision of a court composed of a majority of Democrats. If he cannot, how can he expect us to have confidence in a court composed of a majority of Republicans?" Douglas's use of the word "majority" is key, for he is speaking not of "balance" and the propriety of having a Republican voice on the Court. (That, indeed, existed.) Nor would Lincoln have been any happier if Dred Scott had been a 5-4 decision instead of 7-2. Rather, he objected to the fact that the Supreme Court was controlled by persons committed to what Lincoln properly viewed as an odious view of the Constitution. And Douglas recognized that Lincoln was committed to securing a new majority, as in fact he did upon his election to the presidency two years later and his ability to nominate justices who would be confirmed by what had become a Republican Senate.

Focusing on questions of "balance" and "mixture," I am afraid, simply allows us to neglect talking about the real issues before both the Senate and the American public. What should become of the constitutional revolution put in place by the current five-person majority and celebrated, as a "revolution," by such prominent law professors as Northwestern law professor Steven Calabresi? Should the Senate allow the decision in Bush v. Gore to its proponents a political advantage in carrying that revolution forward?

I offer two final comments about "balance." First, to the extent that "balance" is in fact desirable, the best way to achieve it is through the ordinary political process of shifts in power among the political parties in both the Executive and the Senate. It may be, however, that our ordinary political system is failing us in important respects, for reasons that I would be happy to go into in during the question period.

Secondly, if this Committee does wish to wrestle with such questions as to what constitutes the best "mix" of judges on a court, I would emphasize the importance not only of abstract ideology, but also of what Justice Breyer described as "life experience and different kinds of training." I believe that a significant lack on the current Supreme Court is someone with a significant degree of political experience. The developing custom of appointing to the Supreme Court only persons with prior experience on the bench is, I believe, decidedly unwise, depriving the Court of important perspectives that are the result of real immersion in the political process. Courts in the past have regularly included former senators, governors, cabinet officials, and, in one instance, a former president. We would do well to return to that practice, and this Committee should use its "advisory" role to encourage such nominations.

In one sense, this emphasis on political experience is independent of ideology inasmuch as there are obviously both Democrats and Republicans who would bring rich political backgrounds to the judiciary. But there is at least one connection worth mentioning: Several analysts of the current Supreme Court emphasize a specific ideological theme that runs through many of its decisions, which can accurately be described as a near contempt for politics and politicians. The current Court is composed of a majority of justices, themselves without significant political experience, who appear to view politicians as simply the agents of private interests and pressure groups, unworthy of trust, coupled with a fear of disorder if the political process is not tightly controlled. (Bush v. Gore is the most dramatic illustration of this point.) The disdain for other branches of government, and for the wisdom that might be generated by service in this branches, leads the Court to give the impression that only it can be trusted to enforce constitutional values or to think about what the Constitution means. Three important examples of this contempt for Congress are Flores v. City of Boerne, in which the Court blithely invalidated the Religious Freedom Restoration Act, supported by overwhelming majorities of both Houses of Congress and by the President of the United States; and United States v. Morrison and University of Alabama v. Garrett, in which the majority exhibited ill-disguised disdain for the relevance of the many hearings, held over several years, that led Congress to pass the Violence Against Women Act and the Americans with Disabilities Act.

The Supreme Court, therefore, has made its own contributions, together with the tabloid press and cable news shows, to the pervasive cynicism about the political process that is corroding our political system. The voice of an honorable practitioner of the arts of politics would be a valuable addition both in the conference room of the Supreme Court and, indeed, in the written opinions themselves.

I have emphasized the issues posed by nominations to the Supreme Court, but one should not minimize the importance of appointments to what the Constitution deems "inferior" federal courts. Indeed, because of the fact that the Supreme Court hears only relatively few cases in any given year, almost all decisions of the circuit courts are in fact final, not only for the litigants in the particular case but also for the millions of persons who happen to live in a particular circuit. Circuit judges do not enjoy the same degree of freedom as do Supreme Court justices with regard to overruling past decisions, but it would be foolish to ignore the extent to which imaginative and innovative circuit judges can indeed exercise a real influence on legal developments, for good and for ill. No one, for example, could understand the current constitutional revolution without paying due attention particularly to certain judges on the Fourth and Fifth Circuits. This does not mean that the same level of ideological scrutiny should be applied to all nominees at each level of the federal judiciary. It does mean, however, that ideology should not be irrelevant even when considering a nominee to a federal district or circuit court.