Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

A Modest Proposal for Restoring Trust In Federal Judicial Appointments

By Jack M. Balkin

Just about everyone who is paying attention agrees that the appointments process for federal judges is far too politicized. Neither side trusts the other. Both sides are guilty of hypocrisy. It?s a mess that threatens the integrity of judging as well as public faith in the integrity of judging.

Senator Mitch McConnell and the Wall Street Journal continued this unfortunate trend in their recent calls for a ?bipartisan? approach to federal judicial appointments. For the WSJ, bipartisan means that President Obama should re-appoint President Bush?s lapsed judicial nominees. In a recent speech before the conservative Federalist Society, eliciting an approving roar from the crowd, Senator McConnell suggested that Republicans will oppose any candidates who are nominated by Obama for reasons of ideology.

The Big Fat Lie here is that the last three Republican Presidents have systematically screened federal judicial nominees for conservative ideology. If Republicans were committed to the test McConnell proposes, they would vote down Bush?s judicial appointees.

The Federalist Society is not a politically neutral organization but a partisan political one. And the judges the Society prefers are not non-ideological but political, economic, and social conservatives. It is absurd to suggest otherwise.

Absent a candid admission on the part of Republicans that they too have politicized the process, it is sensible for liberals to assume that the next Republican president will resume rigorous ideological screening of judges. They would be suckers to think otherwise.

Here?s a modest proposal to get us on the right track:

The crucial test is not whether a nominee has a political ideology?holding social, economic, and political views of one stripe or another?for most everyone does. Republican appointees can come from the conservative end of the political spectrum and Democratic appointees from the liberal end without threatening the integrity of judging (a fuller explanation here).

The test is whether a nominee is an ideologue. An ideologue is committed to pursuing her political agenda at every opportunity. Ideologues on the bench, left or right, are a threat to the rule of law. It?s not easy to identify ideologues, but one sign is the past advocacy of extreme positions.

It would be a gesture of good faith for President Obama to re-appoint a few of President Bush?s highly qualified judicial nominees who are not conservative ideologues. To match this gesture, the Federalist Society, Senator McConnell, and the Republican Party, should admit that for decades they have engaged in a hardball game of ideological-screening and they should pledge in the future to nominate jurists who are not ideologues (the Federalist Society is included here because it has put forth a sizable number of President Bush's judicial nominees).

That would be a start toward restoring trust.

Full post as published by Balkinization on December 01, 2008 (boomark / email).