The heated polarization over Judge Kavanaugh’s nomination to the Supreme Court is a sign that the country is ripe for a serious reckoning with what makes a judicial nominee—particularly one to the U.S. Supreme Court—“qualified.” It shows that America is once more willing to take on the burden of doing politics with respect to the judicial branch. And since the court’s power is extremely broad in scope, it’s both necessary and good that the nation is soberly deliberating about this vital question through its elected representatives.
Benjamin Wittes, a senior fellow at the Brookings Institution and the editor-in-chief of the legal blog Lawfare, is of a different opinion, however. He is worried about the state of America’s judicial confirmation process. In the pages of The Atlantic, Wittes laments that we are in the death throes of the “Confirmation Wars” that rage about us. Judge Kavanaugh, he writes,
will be confirmed because there are 51 Republican senators in office and a Republican vice president who can break a tie if need be. While he may get a few Democratic votes, he will get confirmed—indeed, he will get a vote at all—because Republicans right now have the raw political power to confirm him on their own. That political constellation of power exists because people expect him to vote in certain ways on certain types of cases, to deliver certain specific outcomes on issues they care about. Democrats will oppose him for the same reasons.
While this constitutes a deviation from past practice, it’s difficult to see precisely what’s either technically or substantively wrong with the situation that Wittes and those who agree with him decry.
Technically, at the political-constitutional level, the Senate is well within its power to withhold its “advice and consent” and so reject any president’s (judicial) nominee for any reason—or no reason at all. As we’ve seen, the Senate can refuse even to give a nominee a hearing. While that has incensed some, the reality is, in appointment matters, the Senate has the final say, and nobody who’s being honest doubts that.
As a substantive matter, Wittes’ view—namely, that nominees should be on the auto-confirmation track if they’re well-credentialed and have the right “temperament”—is only coherent if one believes that a nominee’s having the right judicial philosophy is a nice “value add” but isn’t strictly necessary to be a qualified judge.
But that’s wrong. Judicial philosophy—how one views the Constitution and conceives of one’s role as a judge, particularly how one understands the limits of one’s own authority—is by far the most important component of being a good judge. And the post-Bork Senate is finally showing that it understands this.
Whether each party consciously understands why it supports the judicial philosophy that it does—“originalism” for the Republicans, “living constitutionalism” for the Democrats—is wholly beside the point. What does matter, however, is that it has happened. And it has forced us to confront an uncomfortable reality: For Republican and Democratic senators alike, only a certain type of nominee is confirmable (i.e., the kind that has the judicial philosophy to which these senators are partial, regardless of why they are partial to it).
This is as it should be, the lamentations of “proceduralists” like Wittes notwithstanding. What matters more than anything else with respect to the judiciary is that the judges who get confirmed won’t one day reveal themselves to be robed tyrants. The country had enough of that from the Warren court. The old confirmation process was possessed of a certain decorum, yes, but it was at the same time not well-suited to detect and then smoke out nominees who would go on to rule by judicial fiat. Plus, it was only able to be so genial because only one judicial methodology, what we today call “originalism,” was understood to be legitimate, and most judges operated within that framework.
Until the 20th century, that a judge would be a natural-law originalist went without saying. But, beginning in late-19th and early-20th century America (and even earlier in a non-American context), Oliver Wendell Holmes, Jr. precipitated a legal revolt, with the aim of reconstituting the judiciary into one that would rule with an eye toward reifying the best social consequences. The Holmesian judiciary would base its decisions on economic, social science, and statistical reasoning at the expense of the actual text of any given law. He and his disciples pushed “living constitutionalism” into the mainstream, where it had no right to be and where, regrettably, it remains to this day. “Originalism” only became a self-conscious legal theory in the 1980s as a counter-reaction to Holmes’ legal rebellion, but it has always existed.
It simply won’t do to lament the “politicized” process we have today, as Wittes and others do; that critique means nothing. In the United States, judges always have been subject to political-electoral rule and control. On the front end, they need to run the presidential-nomination-and-Senate-confirmation gauntlet, and on the back end, they can be impeached. (Judges need to be impeached much more frequently, as it happens.)
Here’s Wittes again: “Our debate about judges takes place in the language of principle. We pretend to debate judicial philosophies, when we all know there was no philosophical objection to confirming Merrick Garland” (emphasis added).
Wittes goes too far, however. Senate Majority Leader Mitch McConnell’s (R-Ky.) stated reason for blocking Judge Garland had to do with the timing of an election, to be sure, but we must ask: Were McConnell and Co. flexing their political muscles just for the sake of flexing? Or because they opposed Judge Garland’s becoming Justice Garland and therefore gaining the authority, along with just four other justices, to impose his will on the entire nation? Obviously it’s the latter; the move was highly risky and thus it needs to be justified on grounds other than, “Screw Obama!”
At some level, the GOP understands that a non-originalist/“living constitutionalist” judicial philosophy is inherently disqualifying of a judicial nominee (at least one to the Supreme Court), and it doesn’t matter if that’s just because the nominees they oppose “would give us results we don’t like.” In this case, even if not in some others, the ends really do justify the means, and that’s because nominees bring their background assumptions onto the bench with them; judges whose basic disposition is non-originalist simply cannot be trusted to act as judges ought to act, how the Constitution envisions they’ll act.
The Constitution is far too important to be left in the hands of judges who see its provisions as having about as much solidity and force as silly putty. We cannot risk handing over the Constitution to judges who have no qualms about torturing it to say something it plainly does not whenever it’s politically expedient.
What we need is even more polarization, more rancor, over the judiciary. This polarization in our body politic is akin to a fever in a human body: Just as a fever combats sickness, so, too, does polarization. Except, instead of the flu, America is fighting the virus of judicial tyranny.
A Justice Kavanaugh would be the beginning of her recovery.
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