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Politics is Part of Supreme Court Nomination Process

Chris Edelson, Esq. - 10/31/2005

Whatever Harriet Miers and President Bush say publicly, the real reason Miers withdrew her nomination to the Supreme Court was because she was not acceptable to ultraconservatives. Hard core conservatives in the Republican party, like Senators Sam Brownback and Rick Santorum, and hard charging conservative interest groups like Concerned Women for America and the Family Research Council, have made clear that they demand a nominee with established conservative bona fides, someone in the Scalia or Thomas mold. They will settle for nothing less. They don’t want to take a chance on someone whose views, for example, on Roe v. Wade, are not known. They don’t want another David Souter, the “stealth candidate” nominated by Bush’s father who has turned out to be one of the more liberal members of a staunchly conservative court.

All this reveals the hypocrisy of standard conservative arguments about the courts and judicial nominations. Earlier this year, conservatives railed against Democratic threats to filibuster extreme Bush nominees. Senate Majority Leader Frist solemnly invoked the principle that “all nominees deserve an up or down vote.” The Miers episode exposes an exception to this rule; if a nominee is not palatable to conservatives, that nominee does not deserve an up or down vote. He or she will be forced to withdraw, at the whim of ultraconservatives (some of whom are not elected officials).

More centrally, for years, conservatives have promoted the idea that judges are not political creatures. In fact, their critique of the “liberal judges” who supposedly infest our court system is that they are guided by politics, not law. That is what conservatives meant when they accuse judges of “legislating from the bench” and when they praise “strict constructionists” (supposedly guided by objective truth, not politics). The implication is that judges can and should decide cases based on objective legal principles, not on ideology. But the reaction to Miers shows that conservatives do believe ideology has a place in the nomination process. It’s just a question of which ideology. The suspicion about Miers focused on her ideology; simply put, conservatives could not be sure she was conservative enough. Although questions were raised about Miers’ qualifications, the real issue was her ideology. Clarence Thomas was barely, if at all, more qualified than Miers. But conservatives did not torpedo his nomination, and would gladly support someone in his mold, with his qualifications, today. What separated Miers from Thomas in the eyes of conservatives was not her legal credentials, but her ideological ones.

Lawyers, judges, and law professors have observed, for years, the fact that politics does not stop at the courtroom’s door. Legal realism, the common sense based theory that judges’ personal views, biases, and subjective preferences affect their decisionmaking, has been around since the 1930s. Law students learn about this reality in school when they study decisions, and they see it first hand when they go into practice. It is well known that there is such a thing as conservative and liberal judges. There is no objective legal source that can tell judges how to apply ambiguous, but deeply important, constitutional principles like “due process” and “equal protection” to cases that come before the courts. The reality is that judges are, at least in some cases, guided by their politics. They are human beings, not machines. That is the lesson of legal realism, and that is the reality of our legal system. This is not necessarily a bad thing. I’d rather have a human being deciding death penalty cases than a computer that can spit out supposedly objective “strict constructionist” logic.

It is past time that we openly acknowledge this reality in the context of judicial nominations, especially Supreme Court nominations. There is such a thing as a liberal judge, and a conservative judge. There are qualified judges of both types. Neither is inherently more capable of being a judge than the other. Presidents choose nominees for political reasons, hoping that they will deliver congenial decisions in the area of abortion rights, free speech, or civil rights, as the case may be. It should be fair game for either party to challenge a nominee as too extremist, too far to one political side of the spectrum than the other, too much outside the mainstream.

The simple political logic of any nomination is this: if a president can gather enough votes, his nominee will be appointed. Some nominees, like Miers, will alienate conservatives. Other nominees will alienate liberals. It should no longer be off limits for everyone to acknowledge this reality, that nominees are themselves judged, at least in part, on their political views (to the extent that they can be known, or discovered). If President Bush defers to the ultraconservatives who sank Miers’ nomination and sends a staunch conservative before the Senate Judiciary Committee for confirmation, someone whose record makes clear he or she is in the Scalia/Thomas mold, liberals should feel free to challenge the nominee as an extremist. If conservatives chastise them for injecting politics into the process, liberals can point to Harriet Miers and remind conservatives that they did not invent the idea that, when it comes to judicial nominees, politics matters.