role of ideology in confirming federal court judges, The

INTRODUCTION

Last May, the New York Times reported that forty-two of the Senate's fifty Democrats attended a private retreat to forge "a unified party strategy to combat the White House on judicial nominees."1 There, several academics urged the Senators to scrutinize every judicial nominee using different criteria than Senators of both parties had used in the past: " `They said it was important for the Senate to change the ground rules and there was no obligation to confirm someone just because they are scholarly or erudite,' a person who attended said."2 The Senators were urged to present a unified front and not express their personal views praising a nominee.3

Following this meeting, in the summer and fall of 2001, the United States Senate Subcommittee on Administrative Oversight and the Courts of the Committee on the Judiciary, chaired by Democratic Senator Charles E. Schumer of New York, conducted a series of hearings-a continuing seminar if you will-on the role of the Senate in confirming federal judges, ranging from district judges all the way to the U.S. Supreme Court.4 In hearings before this Subcommittee, and in the popular press, some academics and commentators have argued that any judicial nominee should assume the burden of proof to justify his or her nomination, even though the Senate considers the nominee only after the judicial candidate has already crossed several hurdles, such as a Presidential nomination, an extensive FBI background check and an evaluation and rating of each nominee by the ABA Committee on Judicial Selection.5 Moreover, these commentators argue that the Senate should frankly and openly consider legal views of the judicial nominee, and vote against one who, in the view of the particular Senator, might not vote the right way on disputed legal issues. Commentators candidly urged Senators to apply a "litmus-test" to nominees and make sure that the Senators have "nailed down their [the nominees'] view" on the topics that the Senators feel are important.6 Some Senators may be persuaded.

Senator Charles Schumer of New York, for example, has said that he would specifically ask the nominee how he would vote on particular legal issuescampaign finance, gun control, and privacy-that are likely to come before an Article III Court:

For instance, I'd ask the nominee "What's your views on the First Amendment? How broad, how narrow?" And then I'd say, "Well, how does that stack up in terms of campaign finance reform? Would you vote to knock out much of campaign finance reform?" That's a great debate on the court. I'd ask: "What are your views of the Second Amendment? Do you believe that, for instance, it pertains just to militias or to the average person?" That's a great debate. And then I'd ask: "Would your views on the Second Amendment have you rule that any kind of licensing or registration of hand guns wouldn't be allowed? What's your views on privacy? Do you believe there's a constitutional right to privacy?

And do you believe that right to privacy would allow the court to make a decision on a woman's right to choose, to guarantee that right?"7

Senators have not normally asked such questions of judicial nominees. In fact, as discussed below, until 1955 there was no tradition of judicial nominees appearing at the confirmation hearing to answer any questions. When nominees started testifying and appearing at the hearing, the Judiciary Committee would not insist on answers as to how they might rule on legal questions nor would it punish a nominee for refusing to answer.

For example, Justice Ruth Bader Ginsburg described what did not happen during her confirmation hearing to the D.C. Circuit, in June of 1980. An organization called the United Families of America proposed that the Senate Committee ask judicial nominees a series of questions to test the nominee's "balance."8

Can the Congress limit the jurisdiction of the federal courts in, say, school busing cases?

Do parents have any rights with respect to abortions performed on their minor children?

Present law and practice of the armed forces of the United States bar women from combat positions. Could that exemption withstand a constitutional challenge?

What principles ought federal judges to follow in deciding social policy cases?9

Senator Howard Metzenbaum, the chair, refused to ask the questions and said so in no uncertain terms: "You don't mean that every nominee up for confirmation ought to have his or her views explored . . . on all of the controversial issues ... ?"10 Later, then-Judge Ginsburg wrote that she found the questions a "frightful prospect."11

The tradition has been for the Senate not to require nominees to explain how they would vote on particular legal questions. Sometimes the Senate would conduct no hearing before a confirmation vote.12 Until 1929, if the Senate Judiciary Committee did hold a confirmation hearing on a Supreme Court nominee, the hearing would be closed to the public, and the nominee would not appear as a witness.13 Typically the nominee stayed at a hotel near the Capitol, where he might respond to a particular question about his stock holdings by sending a telegram to the committee, but he would not personally attend and would not be subject to direct and follow-up questioning.14

In 1955, John Marshall Harlan started the tradition of the nominee appearing and testifying at the confirmation hearing. He was actually the third nominee to testify, but the prior episodes were considered atypical.15 Since that time, judicial nominees have appeared and given testimony. In 1981, the Senate Judiciary Committee, for the first time, allowed these judicial hearings to be broadcast on radio and televised.16 Our present traditions are really quite recent.

With the advent of personal appearances before the Senate Judiciary Committee, some people argue that the senators should use the hearing to learn about the nominee's philosophy of constitutional interpretation and determine how the nominee might decide a controversial legal issue, such as search and seizure. Senator Schumer of New York has argued that some Senators really have considered ideology, though they do it under the table: "The not-so-dirty little secret of the Senate is that we do consider ideology, but privately."17 We may assume that he is correct and that some Senators, at times, may consider such issues. However, to recognize that some Senators may have considered a nominee's political affiliation or ideology does not lead to the conclusion that Senators should consider such factors, anymore than recognizing that sin exists means that we should aspire to it.

That is the topic of this essay: Should Senators ask judicial nominees how they would vote on particular legal questions? More precisely, should nominees answer such questions? If a Senator asks a judicial nominee whether his or her views of the Second Amendment indicate that the nominee would "rule that any kind of licensing or registration of hand guns wouldn't be allowed,"18 what should the nominee say?

Obviously, if Senators may properly ask such questions, it would not do for the nominee to respond, "I haven't thought much about the Second Amendment and I would like to see the facts of the particular case." In that instance, we would expect the Senator to reply, "Please think about it and come back in a month and give me your answer. And, if the facts of the case matter, tell me under which set of facts would you invalidate a federal law." Indeed, if Senators have a right to secure answers to legal questions, we might expect Senators to ask the nominee to submit written answers to a host of legal issues.

We are not surprised if Senators ask the Secretary of State designate, or a Attorney General designate his or her views on questions of policy, because political appointees are supposed to make policy based on political judgments. Politicians are supposed to make promises as to how they would vote. But judges are supposed to apply the law based on legal principles. Granted, there may be judges who, at times, may rule a particular way because of their view of politics. But, like sin, to recognize that it exists is not to aspire to it.

My conclusion on this issue is simple enough: the rules of judicial ethics, our traditions, and our history all counsel that neither the President nor the Senators should ask judicial nominees how they expect to decide legal questions. The Senators should ask nominees if they have made any promises to the President or his aides, other than the faithful performance of their judicial duties. The Senate should reject any nominee who has made such promises. We want fair courts-not liberal courts, not conservative courts, not moderate courts, but fair courts, and by "fair," I mean we want judges who will call them as they see them, without regard to politics, even if their decisions (e.g., the desegregation decisions) will not be popular.

In reaching this conclusion, let us consider some basic principles.

A. IF IT AIN'T BROKE, DON'T FIX IT

The old saw, "if it ain't broke don't fix it," applies to the present proposals to change the role of the Senate. While proponents of change are no doubt acting in good faith when they urge the Senate to "change the ground rules"19 for confirming judicial nominees, they should first assume the burden of proving a need for a change. We have today-and we have had for the entire twentieth century-the most powerful and respected judiciary in the world.

Foreign lawyers in the newly emerging democracies in Eastern Europe, South America, and the Far East admire our legal system. Even if they do not fully understand our system, even if the Commissars had kept them in the dark, they know that ours is the system that they would like to emulate.20 That sentence bears repeating. Lawyers and judges throughout the world all say that they want their judicial systems to be like our federal system. They want their judges to be like our Federal judges. The lawyers in South America were familiar with our system, the lawyers formerly under Communist domination were not, yet they knew that it was our system that they wanted to copy. Even when they were well-versed with the French Civil Law system, they wanted to copy our system, not the French.21

In Moldova, for example, a member of the Supreme Constitutional Court told me that, years earlier, when he was writing his dissertation on Comparative Constitutional Law, he had to secure special permission to travel to Moscow to read the Czech Constitution, which was under lock and key at the time-although Czechoslovakia was then a Communist country, and hardly a model of Western democracy. This Moldovan Justice knew nothing about our system except that he wanted to copy it. He knew that if the Commissars were concerned with the destabilizing influence of the Czech Constitution, they were overwhelmed by the American Bill of Rights.22

Our judicial system is at the top of the food chain, and that is a good reason to leave it alone. Given the fact that the Senate has been confirming federal judges for years, and the product is admired around the world, one wonders why we should think of changing the way the Senate confirms. There is no reason to change presumptions or change the way the confirmation process works when the present system has produced-over a period that spans several lifetimes-the best judiciary in the world.

Granted, some judicial decisions are not immediately accepted. The one person, one vote decisions fall in that category, but now they are part of the warp and woof of our Constitution. The people who criticized these decisions were legal lions of their era.23 It would be surprising to think that they should have been excluded from judicial consideration because of their writings. Our federal judiciary is independent by design of the framers of our Constitution. An independent judicial system means that sometimes judicial opinions will be unpopular, and we must accept that, just as we accept scholarly criticism, because the only appeal from the U.S. Supreme Court is to the law reviews.

B. JUDICIAL NOMINEES MAY NOT PROMISE-OR APPEAR TO PROMISE-TO VOTE PARTICULAR WAYS ON LEGAL ISSUES It has long been a basic principle of judicial ethics that any person who is a candidate for appointment or election to a judicial office "shall not"

make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.24

It is wrong for a nominee to promise to vote a certain way, to promise (or appear to promise) to vote to overrule or to not overrule a particular precedent, or promise to approach a legal problem with a particular mind set.

The Senate should not confirm anyone who would make such promises. I cannot believe that former Presidents Bush or Clinton or their aides would have asked such questions, nor that such questions would be asked in the vetting process under President George W. Bush.

It is permissible for Senators to ask nominees if they have made any promises-other than "the faithful and impartial performance of the duties of the office"-to the President or to any Senator. If the nominee has made other promises, then the Senate should know what they are. But neither the Senate nor the President should seek such promises. Consequently, the Senate should not confirm someone who has made such promises and who treats the judicial office as an elected office. If judges are no different than politicians, if their main duty is to make policy rather than apply law, the people should elect them directly, and they should make their promises directly to the people.25

While this Article focuses on the judicial nominee's role in answering questions that probe his or her views of what the law is or should be, one should realize that if those questions are fair game, others are as well. If we reject this principle of legal ethics, we should expect that other principles will also fall by the wayside. One law professor has recently advocated that the Senators should examine why lawyers accepted certain clients, because, "a lawyer's decision to take a case that he knows will involve the making of certain kinds of arguments may be probative of his beliefs."26 Under his view, if the Senators may properly insist on answers to specific legal questions, they should also seek to intuit how the nominee might vote by taking into account other factors, such as the clients whom the lawyer has represented. Is this not another way of asking whether we should punish nominees because of the clients they have represented?

For decades, lawyers have argued that we should not judge lawyers by their clients, because of a basic principle of legal ethics-that lawyers have every right (and duty) to defend clients, even members of the Communist Party or the KKK, in spite of the fact that the lawyers strongly disapprove of those organizations or their beliefs. "Regardless of his personal feelings, a lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse."27 The fact that a lawyer may defend guilty people and secure their acquittal, the fact that a lawyer is successful in his legal arguments is not "probative of his beliefs." Yet, there are those who argue that this learning should be unlearned, with law professors leading the charge.28

C. JUDGES SHOULD NOT RULE AS POLITICIANS ONCE THEY ARE ON THE BENCH

The argument that the Senators should vote on judicial nominees based on the Senators' views on how the nominees will vote on legal issues assumes that judges vote based on who appointed them to the court. The judges are human, to be sure. They put on their robes, two legs at a time, and sometimes they make mistakes, which is why we have courts of appeal. But they act in good faith in coming to their conclusions. The Constitution gives Article III judges lifetime tenure and salary protection so that their rulings will not be based on the election returns.29 They know that their ultimate judge is history, not the politics of the moment, so one should not expect judges to rule as Republicans or Democrats once they are on the bench.

Let us take the District of Columbia Circuit, for example. When some people argued the D.C. Circuit is one of the most partisan, and that one can predict how the case will come out when you know which judges are sitting on the three-person panel, Harry Edwards, a former law professor and a highly respected judge of the D.C. Circuit, studied that contention as only a scholar would. After studying the cases and the votes of the judges based on the President who appointed them, he concluded that the judges did not act as Democratic Judges or Republican Judges but as judges. He strongly objected to "a growing perception that federal judges decide cases on political grounds. . . ." This view, he said, is not only simply wrong, and a "myth," but it also tends to "undermine public confidence in the judicial process.,30

D. OUR HISTORICAL EXPERIENCE SHOWS THAT PRESIDENTS, SENATORS AND OTHERS ARE UNABLE TO PREDICT HOW JUDICIAL NOMINEES WILL ACT ONCE THEY HAVE LIFETIME TENURE

Commentators, Presidents, and Senators may think that they can predict how a nominee will vote once that person is confirmed, but our historical experience should teach us to be more humble. We do not know what the major legal issues will be ten, fifteen, or even five years from now, much less what might be the "liberal" or "conservative" answer to them. We cannot predict with any accuracy how nominees will act once they become judges. History has repeatedly taught us that lesson. It is easy to assert that one can foretell how the candidate will vote, but Professor Alexander Bickel, a distinguished legal historian, advised years ago: "You shoot an arrow into a far-distant future when you appoint a Justice. And not the man himself can tell you what he will think about some of the problems that he will face."31

It is easy to find examples to support Bickel's thesis. The National Organization for Women recently rallied in Washington, D.C., demonstrating because of its concern that Justice O'Connor might retire soon and NOW feared her replacement.32 However, when President Reagan appointed her, NOW was substantially less enthused. When Justice Powell was nominated, the President of NOW testified that Powell's confirmation would mean that "justice for women will be ignored..."33 When Justice Stevens was nominated, a different President of NOW testified that Justice Stevens has "blatant insensitivity to discrimination against women."34

If NOW were a baseball team, it would be batting zero,35 but it would not be in a league of its own, for its poor predictive abilities are no worse than others. Civil rights lawyer Henry L. Marsh III testified at Powell's confirmation hearings about Powell's "record of continued hostility to the law, his continual war on the Constitution."36 That is not the Justice Powell that any of us would recognize.

Presidential batting averages are as poor as those of NOW or other groups. President Roosevelt appointed both Felix Frankfurter and William 0. Douglas, two Justices who were both thought liberal before they were appointed. Although the same President appointed them, once they were on the bench, they were as alike as oil and vinegar.

Nixon appointed both Burger and Blackmun, and the press promptly dubbed them the Minnesota twins. After a while, it was clear that these twins did not really share the same parentage. Some Court watchers believe that they can prophesy what a nominee will do by looking at his record. This belief may be a factor encouraging presidents to look primarily at lower-court judges when choosing appointees to the High Court. Both Burger and Blackmun were lower court judges before being elevated to the Supreme Court. Yet, they taught us that, like generals who are always fighting the last war, past practices do not control the future. We can look to history not for prophecy, but for conjecture.

In our early history, Presidents were no more prescient. Consider President James Madison's appointment of Joseph Story in 1811. Madison was a member of the Democratic-Republic party. His mentor, Thomas Jefferson, had defeated the last Federalist to hold the presidency, John Adams. Story, like his father before him, and like Madison, was also a Democratic-Republican. President Madison expected that the strong-willed Story would serve as an intellectual counterweight to the views of Federalist Chief Justice John Marshall. Yet, once on the Court, Story often supported and expanded Marshall's views.37 Some contemporaries concluded that he even out-Marshalled Marshall.

Even short-term predictions are wrong. President Theodore Roosevelt appointed Oliver Wendell Holmes to the Court because he thought Holmes would strengthen federal power over interstate commerce. In one of the first major opinions after Holmes was appointed, the Court upheld federal power but Holmes dissented. T.R. then announced that he "could carve out of a banana a judge with more backbone than that."38

The difficulty in predicting a nominee's performance is also well illustrated in more modern times by FDR's appointment of Alabama Senator Hugo Black. Black, generally viewed as a Roosevelt crony, had enthusiastically supported Roosevelt's ill-fated efforts to pack the Court. He had even once been a member of the Ku Klux Klan. Although he had resigned a dozen years before his Supreme Court appointment, he still received an unsolicited membership card, and many people charged that his resignation was opportunistic; a leopard never changes his spots.39 But Black surprised his critics. If the Senators had tried to predict how Black would rule on racial and free speech issues, they most certainly would have guessed wrong, and we would have been deprived of one of the greatest Justices in our nation's history.

In recent times, Court watchers have sought to focus on the judicial philosophy of the nominee. Evidence that the nominee will seek to look at the historical intention of the framers of our Constitution is strong evidence, we are told, that the nominee will be too conservative.40 For example, if a justice would claim that "justices are not platonic guardians appointed to wield authority according to their personal moral predilections," many commentators would see such a declaration as a code word for judicial conservatism. Yet the language just quoted came from Justice William Brennan, in 1985.41 Brennan will go down in history as one of our most influential justices. There are those who believe that the Senators should look for code words or phrases to determine a justice's philosophy and that Justice Brennan's reference to judicial restraint-"justices are not platonic guardians"-should be the kiss of death. These people would have voted against Justice Brennan.

Recall that Professor Alexander Bickel said that not even "the man himself can tell you what he will think about some of the problems that he will face."42 This simple fact is illustrated by no less a judicial titan than Judge Henry Friendly, a great judge and prolific author. In one case, when one of the parties cited to him one of his own articles indicating how an issue should be decided, Judge Friendly decided that he disagreed with what he himself had earlier written; the genius of the common law system, he recognized, is that judges must make the decisions in the context of concrete cases, not in the context of law review articles. Judge Friendly dissented,43 while the majority relied on Friendly's law review article.44

Judge Friendly did not know how he would rule on the legal issue until he had to decide the legal issue, even though he had thought about the problem and had written an article about it coming to a firm conclusion, a conclusion that he later rejected.

Trying to predict what a judicial nominee will do is like trying to predict what the stock market will do. Some money managers develop good short-term records in timing the stock market (i.e., deciding the best times to buy and sell) and predicting the various turns in the market, but it is much harder to develop a consistent long-term record. The market timer must know not only when to sell (when the market is at the top), but also when to buy. Business school studies typically conclude that it is very difficult-if not impossible-to consistently time and beat the market over the long term. Similarly, it is extremely difficult-if not impossible-to predict with any consistency how Court nominees will turn out.

If a lot of predictions are made, some will be correct. Even a stopped clock is right twice a day. But the President and the Senate do not have the luxury of making a lot of predictions. A President may have only one or two nominations to make-Jimmy Carter had none-and a Supreme Court appointee may sit on the Court for decades. The margin of error in making predictions must be remarkably small, but history has shown that it is, in fact, quite high. In spite of all the efforts to predict how nominees will rule and in spite of the modern tools now used to try to divine how the nominee will act once confirmed, the batting averages of Presidents and Senators and the general public, like the batting averages of market timers, have been remarkably poor.

When we seek to predict how a nominee will vote on the Court, we should remember that predictions of what might happen later this afternoon or tomorrow morning are easier than predictions of what will happen in six months or six years. The analogy between stock market watching and Court watching is again instructive here. The amount of money one can make in the market is usually quite limited if one's horizon is measured in just hours or a few days. As finance studies show, buying and holding stock for the long term is more profitable than trying to guess the latest zig and zag in the market. The real question is whether one can make money over the long term, and in order to do that, one needs a long-term outlook. It is necessary to act like an investor, not like a speculator.

If we treat federal courts as an investment and not as a speculation, then the President and the Senators and the media as well should worry less about how a judicial nominee might vote on any particular issue, a prediction that is typically incorrect,45 than about what they think of the nominee's personal integrity, good faith, and intellectual ability. The alternative, trying to predict how a justice will act on particular legal issues years from now is difficult, if not impossible, because we do not know what those issues are. Even less do we know what the liberal or conservative answers to those questions might be.

E. IS THERE A NEED FOR "BALANCE" BECAUSE THE COURT HAS MOVED FAR TO THE RIGHT IN RECENT YEARS?

It is commonly repeated that the Court has become more conservative over the years, and thus that change should justify a new role for the Senate.46 The record does not support that routine assertion. Elsewhere, I have written on the difficulties of these labels, "liberal," and "conservative,",47 and so I will resist mightily the effort to repeat myself. Let us look at a few facts.

Granted, there are some commentators who complain that the present Court is too deferential to the states; on the other hand, others disagree. President Clinton's former Acting Solicitor General, Walter Dellinger, interprets the recent federalism cases48 simply to mean that it will be more difficult for Congress to enact legislation that is "more appropriate to county commissions than to a national government."49 The sky is not falling, for the new federalism cases still leave Congress with considerable legislative power.50

The precedents do not suggest that this Court is deferential to the states. When it is protecting civil rights and liberties, it is willing to override state laws to meet that goal. During the last two terms on the Supreme Court, the Court invalidated a state law that intruded on the parental relationship by mandating grandparents' visitation rights.51 This same Court threw out state laws that interfered with federal power over international affairs52 and motor vehicles.53 The Court upheld federal privacy laws that regulated state motor vehicle departments and placed upon states the same restrictions imposed on private parties.54 The Court is neither liberal nor conservative as those labels are commonly used because the Justices are not politicians.

Many other examples make the same point. Justice Scalia, whom the popular culture typically portrays as conservative, voted twice to protect burning the American Flag as free speech.55 Justice Stevens, whom the media tells us is liberal, dissented in both of those two cases.56 A few months ago, this Supreme Court voted unanimously to reverse the Ohio Supreme Court and hold that a witness who denied wrongdoing still had a constitutional right to assert the privilege against self-incrimination.57 I do not think that this and similar decisions are explained by any facile reference to politics.

Justice Scalia recently wrote the opinion that banned warrantless searches using high-technology heat-seeking devices.58 Justice Stevens wrote the dissent.59 Some commentators cannot understand this line-up and complain that Justice Scalia is not acting true-to-form. Perhaps the problem is the commentators. When they cannot put a square peg in a round hole, the problem may not be the peg, but the commentators who have predicted that the square peg will be round, and are upset that their prediction is incorrect.

Once nominees are confirmed, they can surprise their critics. It is interesting that the year after Justice Scalia was appointed to the Court, Professor Laurence Tribe became one of his fans:

So far I find myself more in agreement with him than with any other justice this term. His opinions show a degree of care and attention to the actual issues before the Court that is refreshing and I wish was shown by others on the Court. The clarity of his analysis so far puts him in a class by himself.60

CONCLUSION

When President Lincoln, over a century ago, nominated Salmon P. Chase to be the new Chief Justice of the Supreme Court, replacing Roger Brooke Taney, the author of the infamous Dred Scott decision,61 the two most divisive constitutional issues of the day were slavery and legal tender laws. Everyone wanted to know how Chase would rule on theses issues. When Lincoln was asked if his nominee would cast the politically correct vote in such cases, he retorted: "We cannot ask a man what he will do [on the Court], and if we should, and he should answer us, we should despise him for it."62 Lincoln's principle is true today. Senators should not vote for or against a nominee because of predictions (often wrong) of how that nominee might vote on legal questions.

The proposal that Senators should vote on judicial nominees based on how such nominees would rule on particular issues is a proposal that the Senate should reject.63 The twentieth century has demonstrated that we have the best judicial system in the world, bar none. The Senate has the weighty responsibility to preserve it by not changing the ground rules as we begin the twenty-first century.

RONALD D. ROTUNDA*

* The Albert E. Jenner, Jr. Professor of Law, University of Illinois; Visiting Professor of Law, George Mason University School of Law, Fall, 2001.

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