IN DEFEATING THE NOMINATION OF JUDGE CHARLES PICKERING, DEMOCRATS HELP DISPEL THE MYTH OF AMERICAN LAW'S MAINSTREAM

By EDWARD LAZARUS

Tuesday, Mar. 19, 2002

The vote against Pickering's nomination surely provides a preview of other nomination fights soon to come - including a potential battle royal over whomever Bush selects to fill a Supreme Court vacancy, should one develop. The vote also raises the prospect of a systemic meltdown of Robert Borkian proportions, in which Democrats continue to block Bush's nominations throughout his tenure as President.

With the future in mind, Pickering's defeat provides a fine opportunity to dispel two myths that perpetually cloud rational thinking about the nomination and confirmation process. Sadly, much of the commentary that surrounds judicial confirmation battles is just so much claptrap - designed not in the spirit of candor or enlightenment, but purely for political positioning on both sides.

This commentary promulgates dual myths. First, it claims that there is a bipartisan mainstream to which some judges belong and others do not. If we can simply determine whether a judge is "mainstream," this view suggests, then we can easily decide whether he or she should be confirmed.

Second, it claims that judicial selection is to a large extent, based not on ideology but on some more objective measure of "qualification." This claim dovetails with the first; the "non-mainstream" judge may also not be sufficiently "qualified" because he or she has not garnered the requisite approval from the "mainstream."

While it is sometimes advantageous for a commentator to rely on one or both of these myths, in fact it has long been clear that they are just that: myths. The failed nomination of Judge Pickering underlines the point.

The Myth of the Mainstream

A few days before the Pickering vote, the New York Times, in its lead editorial, urged the Judiciary Committee to reject Pickering because his ideas were outside "the mainstream." This is a standard attack on nominees, especially conservative nominees. It has sometimes proven effective in galvanizing political opposition. The idea, however, cannot stand even cursory scrutiny.

In truth, there is no mainstream in American constitutional jurisprudence. Or, to be more accurate, there are at least two mainstreams, one liberal and one conservative.

Few would dispute that a legal idea espoused by several Supreme Court justices and a critical mass of legal academics, whether right or wrong, at least qualifies as "mainstream." After all, what is a mainstream idea other than one that has come to command the allegiance of some substantial group of influential opinion leaders in the field? And of course, within the legal community, no opinion leaders are more influential than judges - for their word is law.

By the same token, the "mainstream" just as surely includes a nominee who holds exactly the opposite views. Which means that virtually every nominee (indeed perhaps literally every nominee) in recent memory fits comfortably within the "mainstream."

Even Robert Bork's extremely restrictive First Amendment views, for example, were widely taught in the academy - presented as one pole of the debate, not as utterly outside its bounds. The same could be said, on the opposite ideological pole, of Lani Guinier's views on voting rights - although many would be quick to claim Guinier's views should preclude her from a judicial nomination because they are not "mainstream." We should also recall that Bork and Guinier taught at highly respected law schools, and Bork, of course, was already a judge when nominated to the Supreme Court.

In short, labeling someone "not in the mainstream" has little descriptive power and is really little more than a political strategy for demonizing a nominee. For better or worse (I would say for worse), our legal culture is divided into two factions that differ broadly and deeply about legal methods and goals. The two factions effectively create two mainstreams, and make the concept of a single mainstream meaningless.

Thus, it is high time our elected leaders (and editorialists) refocused attention from the meaningless question of who is in the mainstream, towards the real issue raised by judicial confirmation battles - namely, the question of which of the two sets of mainstream views is more coherent and more just.

The Myth of Non-Ideological Selection

There is also a second myth about nominations that has gained currency - generally as a result of being promulgated by the Executive branch or the supporters of a controversial nominee. This is the idea that Presidents select their judicial nominees not on the basis of ideology (god forbid there should be a litmus test!), but because of their experience and qualifications.

Most of us, I assume, ignore such disclaimers as pure political posturing. Still, they trade on a common misperception that the process for selecting judges - both when the President makes his selection and when the Senate considers whether to confirm - should be non-ideological. Quite the opposite is true.

We elect Presidents in part because we believe they will nominate judges of a certain ideology. Similarly, we care about which party controls the Senate in part because of the Senate's role as an ideologically-based check on a President's judicial nominees.

If one is conservative, one may worry about a judge's expansive defendants' rights views, fearing they may put criminal back on the streets. If one is liberal, one may want to ensure Roe is never overturned. With many people making these legal but also ideological issues central to their votes for political candidates, it is folly to suggest that anyone truly wants these issues left out of the confirmation process for those who actually apply the law - judges.

In other words, both the President and the Senate have an obligation to make consider ideology (as well as experience and qualifications) in playing their respective roles in judicial selection. And rather than pretend (as is both untrue and irresponsible) that ideology has no role to play, the President and the Senate should embrace ideology as a proper measure for a candidate for the bench - and have their battles on that ground.

Acknowledging that Presidents have every right to select judges ideologically and that the Senate has every right to reject them on the same ground is, admittedly, a formula for friction and gridlock in our era of divided government. Thus, it may be that until a single party controls both the White House and the Senate, the Larry Tribes and Robert Borks of the world will be too ideologically controversial to make it to the bench. Instead, the judiciary will be populated with more hedgers and balancers - Lewis Powells of more or less conservative stripe.

Such a system may not produce a plethora of truly great judges. But this sacrifice of greatness at either end of the ideological spectrum will simply reflect the nation's deep ambivalence on matters constitutional - and that is the price democracy sometimes exacts.


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

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