FIGHTING FOR THE SOUL OF THE FEDERAL JUDICIARY: What We Can Expect From Bush's Nomination Process, And His Nominees

By EDWARD LAZARUS

Tuesday, Mar. 20, 2001

The first salvos have now been fired in the upcoming battle over the soul of the federal judiciary. Inside the White House Counsel's Office, some of the Administration's best and brightest are burning the midnight oil interviewing and evaluating candidates for the 100-plus current vacancies on the federal district and appellate courts.

Apparently, filling judgeships will be a high and immediate priority for George W., and all signs point to a tough-minded and right-wing approach to judicial appointments. For nearly fifty years, Presidents have asked the American Bar Association to evaluate their nominees for the bench. Yet — perhaps still smarting from the tepid evaluation the ABA gave conservative icon Robert Bork when President Reagan nominated him to become a Justice — the Bush Administration has already signaled its intention to cut even the moderate ABA out of the vetting process.

Why the Stakes Are Especially High This Time Around

On one point, everyone can readily agree: the stakes are very high. Lower federal court judges, especially judges on the federal courts of appeals, have enormous influence over the shape of the broad legal landscape. With the Supreme Court hearing only about 80 cases per year, the federal courts of appeals have the final say on most important questions of federal and constitutional law.

Their opinions also provide the Supreme Court with important guidance on those questions the Justices do choose to address. Often the Supreme Court reviews cases because there is a "Circuit split," in which the courts of appeals disagree. When this happens, the clashing courts of appeals' decisions tends to serve as quasi-"briefs" for the parties, and they can be far more persuasive than the actual briefs submitted.

After President Clinton's two terms, most of the federal courts of appeals are now closely divided between liberal and moderate Clinton appointees, on the one hand, and generally conservative appointees from the Reagan and Papa Bush administrations, on the other.

That narrow balance means that one or two George W. appointees to each appellate court could create a dramatic shift in the ideological tilt of federal law nationwide, for many years to come — ensuring a conservative win every time each court sits en banc (that is, with all members participating) and influencing the outcome of many cases heard by three-judge panels as well.

The Illusory Distinction between Ideology and Merit

Because the stakes are so high, during the upcoming debate, opponents of Bush's judicial nominees (such as Lewis) are sure to claim that Bush has made his selections based on ideology rather than merit. Truth be told, however, it is a myth that there is some magical pool of highly learned and experienced non-ideological candidates for the federal bench that Bush could tap, if only he were not so bent on "packing" the federal courts.

Take Bork, for example. Why did conservatives believe he was the most meritorious nominee? To be sure, his credentials were part of the equation. Bork was a distinguished court of appeals judge, former Solicitor General, and well-respected scholar. But the real reason either to love Bork or to hate him was his forcefully advocated view that judges should interpret the Constitution according to the original intent of the document's framers.

Crucially, Bork's advocacy of the doctrine of original intent was inextricably intertwined with his "merit" to be a judge. Conservatives believed Bork to be meritorious precisely because he subscribed to the ideology of original intent — that is, because he rejected what conservatives view as the undemocratic, unjustifiable methods of interpretation advocated by various liberal judges, such as Justice William Brennan.

By the same token, liberals opposed Bork not because the nomination lacked "merit," but because to them, Bork's well-established judicial philosophy demonstrated to them that he was meritless. Precisely because his philosophy was abhorrent to liberals, Bork was also abhorrent as a nominee.

[ideology]

The Two Camps Into Which Legal Culture Divides

For better or worse, our legal culture is divided into two basic camps with very different perspectives on what makes for "good" judging. One camp hopes to undo much of what remains of the Warren Court's expansion of federal power and civil rights, while also championing new rights favored by the business community. The other camp hopes to keep the remnants of the Warren Era intact. And each camp views the other as doing the devil's work.

That Anthony Lewis holds up Learned Hand as a laudatory example of a judicial selection based on merit rather than ideology only proves that it is silly to try and separate the two, given the current state of our legal culture. If President Bush nominated Learned Hand today, Lewis would be leading the charge for rejection by the Senate.

It isn't just that Hand thought Brown v. Board of Education wrongly decided, though that would be automatically disqualifying. More generally, Hand was the nation's leading proponent of the brand of extreme judicial restraint that spawned the modern philosophy of original intent. In a sense, Hand was Bork's philosophical forefather — and Hand is so universally hailed today only because his tenure on the bench pre-dated the later Warren and Burger Court decisions that created the deep ideological rifts that prevail today.

In short, it is time we stop the pretense of looking for ideologically neutral, qualified nominees. Critics of the Bush Administration should accept the fact that it is the President's right to name to the federal bench individuals who will approach the interpretation of federal law and the Constitution as the President believes they should be approached.

At the same time, the Bush folks should accept the fact (enshrined in the Constitution's "advise and consent" clause) that Democratic Senators have an equal right to reject nominees because they believe in an opposing judicial philosophy.

The result may be gridlock. Or it may be a compromise by which the Senate confirms only those Bush choices who temper their ideology with a commitment to continuity with past judicial decisions — even those with which they disagree. But at least if both sides will put aside the usual hokum about "merit," the confrontation will take place on the proper battlefield — that of judicial philosophy. For that is a fight worth having.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, of which the most recent is Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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