It is understandable that confirmation hearings should sometimes become contentious and even partisan. But the past half-century has seen the infection of the process by serious contentions that go to the heart of constitutional governance itself…
Confirmation hearings have a noble place in the American political tradition. They are necessary so that Senators may see to it that presidential nominees—especially to positions as important as those on the Supreme Court—are qualified and free from serious conflicts of interest. The Senate’s power of advice and consent was included in our Constitution as a means of preventing the President from abusing his appointment power. It is understandable that the proceedings should sometimes become contentious and even partisan as Senators seek to prevent mere cronies of the President from assuming the great responsibilities of high office. But the past half-century has seen the infection of the process by serious contentions that go to the heart of constitutional governance itself.
These contentions have centered on attempts by Republican Presidents to place on the bench judges who previously would have been considered uncontroversial. In particular, the succession of activist Supreme Courts following World War II has embedded an ideological view of courts and the law that has delegitimized, for progressives, the very practice of neutral adjudication under law. Where once neutrality and faithfulness to the law were seen as the essential attributes of a judge, today a dominant sector of the academy, the press, and at least one political party seeks empathy and the desire “to do justice,” and the law itself be damned.
The essential problem is that the Supreme Court has come to be seen as an essentially political body. Our constitutional system of checks and balances was intended to protect the independence of judges—their ability to decide cases on their merits, without contending with excessive political pressure. Unfortunately, progressives (who today essentially run the Democratic Party in the Senate) do not recognize the non-political nature of law, or of judging.
The nomination of Judge Neil Gorsuch to the Supreme Court is not controversial in any traditional sense. When the American Bar Association, the trade organization for liberal lawyers, gives a Republican-appointed judge its highest recommendation, you can be sure that the judge is not “outside the mainstream.” Yet Democrats are delaying and threatening to filibuster the appointment. Why? It would be easy to chalk up the histrionics to partisan politics—the Democratic Party’s progressive base demands maximum resistance to a President they deem dangerous and illegitimate, and so any cooperation is seen as treasonous to The Cause.
But Judge Gorsuch is far from the only nominee in recent decades to be given such treatment. After all, it was Judge Robert Bork—a crusty but brilliant and hardly extreme nominee of Ronald Reagan—for whom the term “Borked” was coined. Recent Republican nominees have routinely met fierce resistance, even as Republican Senators have habitually rolled over for much more extreme and hardly over-qualified Democratic nominees like now-Justice Sonia Sotomayor. That the eminently qualified, collegial and squeaky-clean Judge Gorsuch is facing such fierce opposition might, then, be seen as par for the partisan course, in which Democrats view politics as a blood sport, and Republicans view it as a prelude to preemptive surrender.
More is going on, however, as the confirmation hearings clearly showed. Yes, Judge Gorsuch’s adherence to the philosophy of Originalism came in for much criticism. And it would be easy to portray this criticism as rooted in partisanship. That taking seriously the actual language of a legal document, and interpreting it as it was written, rather than as the New York Times might prefer it to have been written, hardly is the stuff of honest controversy. But the Originalism argument itself is merely a proxy for a deeper, more troubling issue.
Put bluntly, progressives have a problem with the rule of law. Democratic Senator Kamala Harris put the issue clearly when she declared her opposition to Judge Gorsuch’s nomination on the grounds that he “has consistently valued narrow legalisms over real lives.” Lest one miss the hostility to the rule of law inherent in that declaration, Senator Harris went on to quote the late Justice Thurgood Marshall, who reflected on the vocation of a judge thus: “You do what you think is right and let the law catch up.”
Justice Marshall participated in numerous important Supreme Court cases addressing a number of serious evils. But it is important that we not allow the genuinely unjust nature of practices like segregation, or the need to address them in legislature and court, to distract us from the radical and genuinely dangerous sentiment expressed by Justice Marshall in this particular instance. Nor should we allow the continuing presence of injustice and the abuse of “the little guy” by powerful actors distract us from the moral imperative to resist those who would undermine the rule of law in the name of “doing the right thing.” For the one actually “doing the right thing” in such cases is not just some individual; it is a person using the power of the government. And, when the chips are down, we little people have plenty to fear from the most powerful actor around: the federal government.
The constant carping at Judge Gorsuch for coming to decisions that supposedly “sided against the little guy” show a concern that law be made to serve political ends. As has pretty much every judge who has sat on the bench for any significant period of time, Judge Gorsuch has handed down decisions that resulted in benefits accruing to rich people and poor, the powerful and the not-powerful, the popular and the unpopular. This is the very nature of justice, properly understood. For judges are intended to decide cases according to the nature of the law and facts, not the nature of the persons in front of them. Indeed, to do as seems demanded by Senator Harris and other progressives would be to violate the Equal Protection of the Laws demanded by the Fourteenth Amendment to our Constitution. To judge according to one’s opinion of the person whose case one judges is to take the role of a king, or the lackey of a king, who dispenses, not justice, but political favor and disfavor, bringing tyranny and oppression.
The “legal niceties” decried by Senator Harris are the essential ingredients of the rule of law. Due process—including the guarantee that judges will decide cases on the basis of fact and law—is what protects us from the mere whim of the rulers. Neutral laws neutrally applied are the only protections many of us have when confronted by people more powerful than ourselves who seek to harm us, or make us do their bidding. This means that Justice Marshall was tragically wrong in saying a judge should “do what you think is right and let the law catch up.” The reasons he was wrong are twofold. First, the judge himself is a powerful person who does not have the right to impose his own fallible opinion concerning what is just on the people entrusted to his judgment. Second, even a judge who is right all the time as to what is just harms the nation and its people by “doing what is right.” Even a “correct” judge undermines the rule of law whenever he steps outside his proper bounds to make law rather than apply it. Moreover, this judge undermines the settled rules necessary for people to go about their lives with any confidence that they will not be wronged, or imprisoned, by surprise—that what they have been told one day is allowed will the next day become cause for punishment.
The law cannot “catch up” with arbitrary judgments, however well-intentioned. The law not only supports, but in and of itself is unbiased, neutral judgment. And without it that benign judge who gave to us the object of our desires one day may be replaced by a malevolent servant of power who tosses us to the wolves the next.
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