Statement of Judith Resnik

Arthur Liman Professor of Law
Yale Law School

prepared for

Hearings: The Senate's Role in the Confirmation Process

The Subcommittee on the Courts
United States Senate
Committee on the Judiciary
to be held September 4, 2001

September 4, 2001

Thank you for inviting me to testify. I applaud the Committee for taking the time to reflect on its role in the confirmation process.

I will speak to two issues: (a) the major transformations within the federal courts during the last half-century that have augmented the powers of life tenured judges, and (b) the contributions that the Senate has made and ought to continue to make when discharging its constitutionally-mandated role of evaluating individuals proposed for life tenured judgeships.

The Federal Courts Today

Article III judges are unique in this constitutional democracy as they hold their charter for life. Those selected and confirmed to serve must, therefore, be individuals in whom all can have confidence.

I use the term "Article III judges" deliberately, as I hope that your attention and your energies will not be focused exclusively on nominees to either the Supreme Court or the appellate courts. Life tenured district judges are critical and powerful actors as well, and their appointments also merit your full consideration.

Indeed, the saliency and import of the federal judiciary has grown substantially over the twentieth century, with an increase in the number of life tenured judges and with an increase in their docket. Recall that one hundred years ago, in 1901, some 70 district judges sat throughout the country, with a single judge serving entire states, such as Maryland, Massachusetts, and Indiana.

Today, more than 650 authorized judgeships exist in the district courts. In addition, some 180 appellate court judgeships are authorized, and hundreds of senior Article III judges augment this work force.

During the second half of the twentieth century, Congress also authorized two new sets of federal judges -- magistrate and bankruptcy judges. These judges sit within the Article III judiciary but do not have life tenure and constitutionally protected salaries; rather they serve for renewable terms. Today, more than 450 magistrate and 325 bankruptcy judges join district judges at the trial level. For clarity, I shall refer to the life tenured federal judges as our constitutional federal judges, and to those judicial officers who work within our Article III courts but without constitutional guarantees as statutory federal judges.

In short, the federal judiciary today looks vastly different than it did, even fifty years ago. Congress has played a central role in this expansion -- by authorizing new life-tenured judgeships, by creating auxiliary, statutory judgeships and periodically enlarging their mandates, and by giving new work to the federal courts. According to the Administrative Office of the United States Courts, between 1974 and 1998, more than 470 new causes of action were created.

As a consequence, constitutional judges today have three tasks:

-- First, as is familiar, they adjudicate, and their rulings touch our lives in a myriad of ways. Today, the federal judiciary's profile is especially high, with recent rulings that have held unconstitutional several federal statutes.

-- Second, constitutional judges now have the responsibility of selecting statutory judges. The district court selects and then decides whether to reappoint magistrate judges; the appellate courts do the same for bankruptcy judges. Recall the numbers; the constitutional trial bench is now somewhat smaller in number than its statutory siblings. Indeed, as of 2001, in six district courts, the number of magistrate judges was greater than that of life tenured judges; in another sixteen, their numbers were equal. Constitutional judges are thus responsible for the selection, appointment, and reappointment of more than 700 statutory judges. Those chosen to be our constitutional judges therefore not only shape the law through adjudication; they also shape the law by deciding who will serve as our statutory judges.

-- Third, the life-tenured judiciary has, over the course of the last several decades, taken it upon itself to advise Congress about the desirability of creating new causes of action, both civil and criminal. That role is new and represents a change in attitude. In the earlier part of the century, the life tenured judiciary thought it inappropriate to provide this form of collective advice on matters of legislative policy. Now, however, through the Judicial Conference of the United States, the Article III judiciary relies on its corporate voice to promote the use of the federal courts for certain matters and not for others. On several occasions, it has urged this Congress not to enact certain causes of action. Constitutional judges have thus taken on a lobbying role, pressing this Congress to enact legislation that comports with a very particular and narrow view of the role of the federal courts.

In sum, when asked to think about whether the current federal bench has a point of view, Congress should turn not only to the judgments rendered but also to the policy positions taken. In 1995, the Judicial Conference of the United States, in its first-ever long-range plan, urged Congress to limit access to the federal courts and to have a presumption against the creation of new civil causes of action and new criminal protections for citizens. And beginning that very same year, the United States Supreme Court, in a series of 5-4 rulings, held unconstitutional criminal and then civil causes of action that this Congress had enacted. The voices that now dominate the federal judiciary surely have a particular ideological stance -- against the use of the federal courts for the protection of a wide range of rights and against the enactment by this Congress of new rights for Americans.

Given the multiplying of roles for life tenured judges and the increasingly consistent anti-access approach of many sitting jurists, the question of selection of constitutional judges has never been more important. And, given the close divide at the last election and the current split in government, it is incumbent on the Senate to ensure that the federal judiciary as a whole reflects the breadth of concerns in this polity.

The Senate's Role: Reflecting and Articulating Legal Norms and Values

A first question posed for these hearings is about the Senate's role, and specifically whether the Senate ought to consider the attitudes, judicial philosophy, and ideology of nominees. The Senate's historical practices make plain that it has done so in the past.

I hope I can help make clear that considering the bedrock views of nominees is not only common and unavoidable (albeit often done implicitly) but also to be celebrated as contributing to our legal norms. When attitudes are widely shared, they are not perceived to be "ideology." Only when norms and values are contested do we think of a set of questions as touching on ideology. The nominations of judges is one place in which legal norms are expressed -- and, equally importantly, developed. Through hearings such as this set and those of individual nominees, we learn about and we develop this nation's values.

The important contribution of the Senate -- and the work yet to be done -- can be illustrated by a brief review of when the question of women's rights became a part of discussions at nominations. It was not until 1970 that a nominee, George Harrold Carswell, was questioned about his attitudes towards women. Congresswoman Patsy Mink from Hawaii called the nomination of Carswell "an affront to the women of America;" she cited his role in a case upholding the refusal to employ women with children of pre-school age, although men with children of pre-school were so employed. When Senator Birch Bayh of Indiana asked Judge Carswell to address "the impression that [Carswell was] not in favor of equal rights for women," Carswell responded that he was committed to the enforcement of the "law of the land."

The Carswell nomination was rejected, but not because of Carswell's views on women's role in society. The following year, when William Rehnquist and Lewis Powell were nominated to be associate justices, several witnesses objected to both nominees' attitudes towards women's rights. While such testimony prompted Senator Bayh to ask William Rehnquist about his views on equal rights for women, no such questions were addressed to Lewis Powell. A nominee's attitudes towards women's rights played a minor role in the hearings, and did not become a subject of analysis by those commenting on the nomination process.

The hearings on the nomination of Robert Bork, in 1987, were the first in which women's issues moved to center stage and became relevant to the outcome. Many witnesses questioned Judge Bork's interpretations of constitutional doctrine to exclude women from heightened protection under the Fourteenth Amendment, as well as his decisions in nonconstitutional cases. Judge Bork's opinions caused concern about his capacity to appreciate problems from the perspectives of women litigants. While many factors contributed to Judge Bork's rejection, his belief that discrimination against women was not directly prohibited by the Equal Protection Clause of the Fourteenth Amendment, his opposition to the Equal Rights Amendment, and his narrow construction of statutory rights for women played an important part.

The effects were visible three months later, when Anthony Kennedy was before the Senate seeking confirmation to the seat denied Judge Bork. The discussion of women's concerns took a notably different turn. Judge Kennedy made a point of affirming his commitment to women's rights. He explained in some detail his growing understanding of the issue; he described his unsuccessful efforts to change the policy of the all-male club to which he had belonged and his subsequent resignation. As he put it, "Over the years, I have tried to become more sensitive to the existence of subtle barriers to the advancement of women and minorities in society. This was an issue on which I was continuing to educate myself." Similarly, in 1990, when David Souter was questioned by the Senate Judiciary Committee about sex discrimination, he rejected the application of only a rational basis test to sex discrimination, and he noted the "difficulty" with the "looseness" of the "heightened scrutiny" standard applied to discrimination on the basis of sex.

With this review of questions put to Supreme Court nominees over the past two decades, one can learn something about the useful role that "ideology" played and the contributions that the Senate has made through the hearing process. Up until 1970, women were invisible in the hearings. Then, during the 1970s and through most of the 1980s, women were but a minor footnote. The change comes in the late 1980s. Through nomination hearings, as well as through several pieces of legislation, the Senate has helped women to become equal rightsholders under the United States Constitution.

I wish I could report that the work is over. But the substance of those rights remain in dispute, and some of the nominees who will come before you are likely to support women's rights only at a very general level of abstraction. In 1994, Congress enacted a major civil rights act for women, the Violence Against Women Act; in 2000, by a 5-4 majority, the Court found one section of it unconstitutional. Lower courts are concluding that the Family and Medical Leave Act cannot be applied against states and finding the Child Support Recovery Act beyond Congress's power. And, last term, the Supreme Court, 5-4, upheld the constitutionality of differential treatment of children depending on whether their mother or their father is a citizen of the United States. At issue in case after case are women's rights to privacy, to be free from violence, to be both wage-workers and care-givers. Debate continues about what level of scrutiny applies to gender-based classifications. Therefore, as each and every nominee comes up for appointment, to the district or the appellate courts, the Senate must continue its work of shaping legal norms to ensure women's equality.

More generally, the Senate should view the nomination process as an important venue for discussions of equality in the courts, in terms of the demography of the judiciary, treatment of litigants, lawyers, and witnesses, and the legal doctrine. One obvious concern is for diversifying the judicial work force so that those who sit in judgment reflect more of the characteristics of those whom they judge. And here again, while some progress has been made, more is needed. It is not that the struggle for what Judge Leon Higginbotham has called "judicial pluralism" has been won or that affirmative efforts to do so are popular, but that hostility to pluralism is no longer plausible. Whether from the left or the right, political parties speak of the need for inclusion, as they prominently display individuals of both sexes and of a variety of races and ethnicities as emblems of their commitment to inclusion.

But what does diversity mean, and is inclusion enough? The Senate should be concerned not only that women and men of all colors come before it as nominees but also that those candidates view the law -- both statutory and constitutional -- as having an affirmative role to play in expanding opportunities for all.

The Bork nomination was a watershed in other respects. The Senate's extensive public questioning of the nominee prompted a vigorous debate about the meaning of the Senate's constitutional obligation and about the effects of the public nomination process. At that time, like today, debate focused on whether the power to provide both "advice and consent" ought to mean that the Senate should presume it will consent. Further, assuming a substantive role for the Senate, the issue raised was whether senators could inquire directly about what was then termed "judicial philosophy" and what is now called "ideology" -- or whether "judicial temperament" and "professional competence" were the only permissible topics.

Reviewing the nominations both before and since the Bork hearings, I hope that the question about the Senate's role can now be understood as settled. As Charles Black explained some years ago, no reason -- "textual," "structural," "prudential," or "historical" -- exists for objecting to reading the Constitution's words "advise and consent" as authorizing senators to take an active role in shaping the federal judiciary. As I have just detailed, in recent years, the Senate has used that role to illuminate both the ideas and beliefs of an individual nominee and the concerns of the nation.

Rather than apologize, I hope that the Senate will embrace the constitutional structure. We should all applaud the insights of the Constitution to build in roles for both the Executive and the Senate. Through these layers of repeated inquiry, first by the President's staff and then by the Senate, power is distributed. The Senate should not hesitate to engage nominees in careful exploration of their views, their work experiences, and their commitments.

This series of hearings has also focused on a related question: whether nominees ought to be asked to make an affirmative showing or whether they come with a presumption of confirmability. No such presumption ought to attach. The Article III judiciary is conceived as independent of both Congress and the Executive. Federal judges are not and ought not to be selected to be a part of the President's "team." When Presidents select a broad and diverse group of nominees who in turn represent a wide spectrum of views, senatorial concern might relax, but when presidents pick a narrow band, such choices ought to prompt "heightened scrutiny."

Searching inquiries are necessary today for two reasons. First, we are in the midst of a significant debate about the meaning of federal law. To preview questions that I understand will be central in the next hearings of this Committee, the meaning of "our federalism" (to use Justice Black's phrase from Younger v. Harris) is deeply contested. By way of a simple summary, today the Commerce Clause has been read to mean something different than it did in 1994. The same can be said for both the Eleventh and Fourteenth Amendments. These new interpretations all come by virtue of decisions made by a bare majority on the Supreme Court.

What is at stake in the appointment of life tenured judges is not only constitutional rights but also the many statutory rights crafted by Congress. Historically, a shared view was that courts were obliged to defer to congressional judgments; doctrinally, this view was expressed by the rule that federal statutes were entitled to a presumption of constitutionality. That presumption is entirely proper, marking the constitutionally shared power of the branches of the federal government to make the meaning of federal law.

But, as I begin to teach my students tomorrow about the federal courts, I cannot report to them that this presumption remains intact. Members of the federal judiciary have undermined it substantially, as they strike federal statute after federal statute. As Justice Breyer put it in his dissent last term in the Garrett case, the five-person majority of the Supreme Court is treating the record developed through hearings in this Congress "as if it were an administrative agency record" and substituting its own evaluation for that of this legislature. Several of the majority's decisions are what I term "factless," by which I mean that they are filled with abstract theoretical claims about constitutional structure rather than grounded in the experiences of litigants, the materials produced through congressional hearings, and the detailed facts within the records.

That approach ought not be one to which anyone aspires. As the Senate considers nominees to the federal bench, it ought to inquire about their attitudes towards the job of judging. Rather than presume them appropriate for the judiciary, assess what they have done, as lawyers and as judges. Further, when considering individuals, the Senate ought also to assess the wisdom of their joining the specific courts for which they have been proposed. I also hope that you will think about the nominees as a group and reflect upon the degree to which they bring to the bench diverse experiences as lawyers, involved with the full range of legal and political activities rather than drawn from only a limited sector. We need individuals who have been lawyers for all kinds of people. The ranks of the judiciary ought to include prosecutors and defense attorneys, those who have worked full time as legal services lawyers and those who have worked in large commercial firms, lawyers involved in the public sector, those who work for all aspects of government, and for non-profits.

No single formulation captures the many attributes that are needed to be a good judge. But the Senate can approach the issue by looking for objective indices of nominees' views. For example, one can learn whether a person, as a part of a professional career, has contributed time and energy to represent those unable to afford lawyers. One can learn whether nominees are aware of the many recent studies demonstrating that courts are not yet places seen as providing equal treatment, regardless of race, language, ethnicity and gender. More than sixty court-commissioned reports address the subject matter of gender, race, and ethnic bias in the courts and the legal profession. Bar associations have taken on these issues as well. One can learn whether nominees contributed to such projects.

Through a variety of means, the Senate can learn whether nominees evidence concern for the human beings whose lives are to be affected by court rulings and whether they can be sensitive to the fact that disputants are often needy. One can look for evidence of a patient willingness to be tethered to records, to be grounded in the minutiae that make up legal proceedings, and to be constrained by the role to delve into the parties' claims to ascertain the merits. One can look at whether a nominee sees the use of federal courts as an important aspect of justice in the United States and supports ready access to the federal courts.

In sum, at this point in our history, I do not believe that the question is really whether the Senate can ask questions and engage in a full inquiry. Nor do I believe that the Senate has any basis in law or practice to feel itself beholden to the President and obliged to confirm his nominees.

Rather, the real question is whether the Senate will have the willingness to devote itself to the work at the level required to do so, well. Stamina, commitment, and energy are required. Hence, I come today not only to offer historical and scholarly materials, drawn from both the archives of the federal judiciary and contemporary databases, but also as a citizen, appreciative that this Committee has convened this hearing -- and to ask for more. I have spent much of my life as a lawyer and law professor thinking about the role of the federal judiciary. I am deeply admiring of this institution, for, as one of our Supreme Court justices put it, "the independent judiciary . . . has been one of our proudest boasts, by reason of Article III."

The task now is to make good on that constitutional promise. To do so requires a fulsome commitment by the United States Senate to ensure that the individuals entrusted with this life-tenured position, and who therefore have the power to adjudicate, to appoint other judges, and to advise this institution on the role of the federal courts, represent all of America rather than only a narrow slice of our legal, political, and social life.

Thank you.

Appendix I

Notes