Academic

Public Discourse About Judicial Nominations (Again)

By Lawrence Solum

In February of 2003, I blogged about Adam Cohen's op/ed criticizing Deborah Cook (who had been nominated for the Sixth Circuit).  On that occasion, I wrote:

I am concerned about Adam Cohen's attack on Deborah Cook, because I am concerned about the rule of law. If the current trend towards the politicization of the federal judiciary continues, then every judicial nomination (not just Supreme Court nominations) can become an ideological battleground. The nomination and selection process will become a strategic game, with each side seeking to create a third political branch. But if the judiciary is just another political branch, then there is no reason to consider its resolution of disputes to be authoritative--to be binding on citizens and the other branches of government. If we produce a judiciary that lacks the judicial virtues and personifies the vice of result-orientation, getting the result the judge wants rather than the result the law requires, we are inviting trouble--because the rule of law is a fragile thing.

Because of Justice Souter's pending resignation from the Supreme Court, we are likely to see another round of highly political criticisms of the eventual nominee. For example, Senator Hatch has expressed concern about Judge Sotomayor's judicial philosophy based on her statements at a panel on judicial clerkships at Duke Law School in 2005. In context, her statements are well within the mainstream of American jurisprudence--and very similar to views expressed by Justices Roberts and Alito. She was addressing a question about the differences between trial court judges and appellate judges, and she correctly noted that appellate court decisions set precedents, which have binding legal force on lower courts and on three judge panels of the circuit in which the decision was rendered. When a new question of law arises, appellate courts do establish what is frequently called "policy" by resolving ambiguities, addressing vague language, or filling the gaps left by prior precedents of the circuit or by the decisions of the Supreme Court. It would have been troubling if Judge Sotomayor had failed to acknowledge this fact--which would command the assent of almost every lawyer, judge, and professor of law.

As anyone who reads this blog with regularity will know, I am quite concerned with the rule of law.  I believe that judges are (in almost all circumstances) bound by the original linguistic meaning of the constitution--as I argue in Semantic Originalism, and I believe that the Supreme Court should depart from its own precedents in the rarest of circumstances--see my The Supreme Court in Bondage.  But making the case for the rule of law requires intellectual honesty, and the notion that the Supreme Court never establishes new rules or takes policy into account is simply silly.  If Judge Sotomayor is nominated, her opinions and her character will be carefully scrutinized.  If she possesses the judicial virtues--courage, wisdom, and lawfulness--she should be confirmed (irrespective of her personal politics): if her record indicates that she twists the law to accomplish her own agenda, then the Senate should reject her nomination.  But the process of evaluation should be careful and fair.

Full post as published by Legal Theory Blog on May 07, 2009 (boomark / email).