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The Liberal Dilemma on Judicial Appointments

By Jack M. Balkin

According to a recent New York Times article, liberal organizations that monitor judicial appointments are unhappy that the Obama Administration is going slow in its judicial nominations. Their real concern, however, is not the leisurely pace but the moderate profile of his nominees: ?Liberals?complain that the Obama team?s selections have been too moderate to counterbalance the strongly conservative appointees of Republican presidents, echoing an accusation they made during the Clinton administration.?

Liberals critics believe that Clinton was foolish to downplay ideology in favor of diversity in his judicial appointments, and they fear that Obama will make the same mistake. ?Of Mr. Obama?s 12 appellate nominees, six are women, four are black, one is Asian and one is Hispanic. By contrast, about two-thirds of Mr. Bush?s nominees were white men.? Obama?s diverse nominees do not all conform to standard liberal ideological profiles.

It is foolish to take this approach, liberal critics assert, because Republican Administrations have for three decades rigorously screened all federal judicial nominees for extremely conservative values, and have pointedly sought young nominees, many in their thirties and forties, to insure a lasting conservative influence on the bench. (Prior to this period, only Supreme Court nominees were screened for political views; lower court appointees were mostly matters of patronage.) Democratic presidents who fail to follow the same strategy are, in the eyes of liberal critics, unilaterally disarming against their political adversaries, thereby insuring conservative domination of the federal bench.

The argument makes sense?unless one is concerned about the growing politicization of courts. Screening nominees for liberal ideology will increase politicization, not reduce it, exacerbating the problem rather than solving it.

Liberals who believe that judges should strive to render decisions based upon the law in a non-political fashion (even if this cannot be perfectly achieved) are faced with a gut-wrenching dilemma. Consistent with this principle, they should always oppose rigid ideological screening of lower court nominees. (This does not mean a nominee?s political views are irrelevant, but that conformity to liberal ideology is not the overriding consideration.) But liberals know that conservatives stand ready to exploit this naïve idealism.

So what is a liberal to do?

Unilateral disarmament is the right choice (as I have argued here). There is no other way. We must trust principled conservatives in the next Republican presidency to stand up and oppose rigid ideological screening on their end. Then, perhaps, this destructive pattern of politicization can be broken.

This act of good faith, regrettably, will likely fail unless the Republican Party undergoes a radical internal change. Nonetheless, if it is indeed eschewing vigorous ideological screening, the Obama Administration is doing the right thing.

Full post as published by Balkinization on November 16, 2009 (boomark / email).