There's a great piece on the common phenomenon of so called conservative court appointees defecting once on the bench to support more liberal decisions. This is, needless to say, a pervasive phenomenon, if only based on the fact that a whole 3 out of the total 9 sitting supreme court justices have followed this pattern. Lots of people are trying to apply historical precedents to try to figure out if Roberts will follow in these justices' footsteps or not. While this is an interesting debate, I'm not inclined to participate - for two reasons. One, despite how often the pattern may repeat itself, I'm not sure historical precedent gives any insight into how any individual might turn out. Two, I don't think that even a worst-case scenario Roberts will be a terrible pick, so the general issue is more interesting to me.

The question posed by Slate gets at several interesting issues, I think. The one that comes to mind first is the issue of the politicization of judges, particularly on the Supreme Court. I can't imagine that the founders intended for judges to be political entities whatsoever. Granted, the system takes into account the fact that the executive privillege to appoint justices poses the possibility of the institution devolving into a political instrument. And I think this is a large part of the rationale for the senate confirmation process (though, I'm no constitutional scholar). It's not a bad bet that Judges are SUPPOSED to be apolitical; I doubt this theoretical point is disputed much. However, given the reality of the situation, I think the public debate on the political nature of judges concerns the following issues. One is how much unsupervised and autonomous power the president has in the appointment process. Questions about the extent of the confirmation criteria and procedure that should be employed by the senate address this issue. On one side you have people saying that the ability to appoint judges is merely another privilege that comes along with winning the election. In this view, the system is not acutely self-moderating at all. In fact, in the short term, it's pretty much totally unchecked and unilateral. But over several terms, the process is assumed to level out. These people tend to argue for a minimalist interpretation of the senate confirmation process, entailing something along the lines of vetting a candidate's suitability for the job in terms of dimensions such as temperment, civility, level of qualification, and background. Essentially it's intended to screen out candidates who are really not cut out for the job (although in reality, how many people who make it to the super-select pool of those who would be considered for the Supreme Court don't have the qualifications to be a competent and suited Justice - with the notable exception of Clarence Thomas, perhaps). So this argument doesn't really seem to hold water. The less strong version of the view would be perhaps that the confirmation is intended to screen out obvious ideologues, who may have the qualifications and experience required for the job, but are unfit in the sense that they will not judge each case individually on the merits, but rather according to a pre-conceived grand scheme of judicial imperatives.

I think this argument is more convincing and relevant to the issue of John Roberts. Leaders have managed to insert the phrase "judicial activist" into the mainstream discourse with astounding success. Without getting into whom the introduction of the concept serves, I think it's pretty clear that people are concerned about judges "legislating from the bench," and that such a practice really does occur. Without question, Roberts passes the ideologue test with flying colors. He writes all the time about the need for a more restrained and humble judiciary. He has never taken a known controversial stand on an important social issue in his life. He speaks regularly about the importance reintroducing careful interpretation of the law and due process in the courts. His revered expertise in all aspects of law supports the claim that he has a profound respect for the institution. This is not to say that he hasn't aided consistent political interests in the past, or consistently had political affiliations with Republican adminstrations. It's to say that ideology refers more to the process than the decision itself. On this count, in my opinion, George Bush's decision to appoint Roberts is one of the saner and most sober things he has done. Of course, this says nothing about what Roberts would decide in a hypothetical future case. What it says is that he will definitely not legislate from the bench, which at least is a good thing. You have to hand one thing to George Bush - he is consistent.

On the other side, people argue that the senate confirmation procedure is a political check on the executive appointing privilege. This makes some sense in theory, but it assumes of course that judges are political entities, both in the sense that presumably they are appointed as political instruments, and that they are selected on the basis of how likely they appear to be to uphold decisions of political importance to the supermajority of the senate. I'm not sure which of the two camps is correct, and, somewhat ironically, it requires the ruling of a jurist to determine which view is in fact constitutional. There is a less strong version of this view. In the words of more than one senator, "what someone thinks does matter." Setting aside whether or not this represents proper originalist protocol, which is almost entirely just an academic debate anyway, my question is if you do try to find out what the nominee thinks, where does that get you? First of all, to begin with the premise is very unlikely, since beyond anything provided by a paper trail, a nominee may easily conceal his or her views. Secondly, if the nominee hasn't been involved in deciding and setting legal precedents before, any information you get will be personal views, not judicial philosophy, and as such is distinctly less useful given that the nominee is a person who can separate personal beliefs from judicial approach. Lastly, even if you can get credible information on both personal and judicial views, judges change once on the bench. That's the whole point. And everyone knows this happens a lot.

Another issue brought up by all this is the notion of strict constructionism, which is necesarilly counteropposed to the idea of "legislating from the bench." Constructionists are certainly in vogue with Republicans right now, and the idea of constructionism is deceptively formidable intellectually. These constructionist judges are going to read the constitution as issued. Therefore, it's impossible that they could ever be inserting the interests of contemporary activist causes into their decisions. The idea is appealing on the surface.

However, there is a vexing issue lurking here, and that is why does strict constructionism always seem to lead to predictable "conservative" positions? In general, due to its strict adherence to originalist (and hence antique and often very provincial) concepts and ideals, constructionism deflates legislative authority. Inherently, legislation in its pure form is, one could say, neutral to the constitution, in the sense of written without especial regard for constitutional (not judicial) precedents. Therefore, since social changes, including civil rights, are inherently progressive in origin, they are also easiest to strike down vis a vis the originalist constitutional litmus test.

Prima facie, I see a huge practical problem with the constructionist doctrine. That is it essentially amounts to guesswork and speculation about what the founder fathers thought. Sure, constructionists put a lot of time and research into their decision-making. But in the end, it leads to an essentially unfalsifiable declaration, because no one KNOWS what the founders thought. And this is potentially very dangerous because it gives judges complete creative freedom, so to speak, which is patently at odds with the judicial function.

But the debate about the politicization of the courts goes beyond the selection process. Apparently, judges now are members of political parties, hold political views, and serve specific political interests. So-and-so is classified a "conservative judge," and then everyone acts surprised when they turn out to make decisions that please liberals. I'm not sure how true this is. To me, it's more indicative of a fallacy in the way people analyze judicial officials than that judges routinely abandon their political views on the bench. I mean, let's face it. Judges have to curry political favor to even get appointed, but that doesn't necesarily mean they are hardcore, committed, partisan ideologues in reality. Moreover, people seem to think that judges are incapable of holding personal views and judicial views separately. This is a strange contention. In fact, I would say that a judge who does NOT completely separate his personal from his judicial views is unprofessional and borderline not qualified. Therefore, this whole business of what does a nominee such as Roberts personally believe seems fundamentally misguided and a waste of time. There's a reason that so many slated "conservative" judges turn liberal: the ones who have a proper judicial profile value the responsibility of interpreting and enforcing the law as they see it above politics.

Slate provides a further possible factor for why judges change on the bench. Essentially, it states that once judges reach the Supreme Court, they begin to think more collectively, with regard to the other judges' opinions, and ultimately in terms of the final outcome of the case. The theory has it that the presence of at least 3 hardcore, unwavering conservative judges on the Supreme Court forces any new entrants to modify their decisions in order to counterbalance the consensus.

People are paying lots of attention to this confirmation process, and for good reason. A lot hangs in the balance in terms of civil rights, abortion, government protection programs, and the distribution of power among the different branches of government. Ultimately, the question to me is not whether Roberts is or will be conservative. There seems little doubt that he is, both politically and judicially. It is whether he will be a practical versus a "constructionist" conservative. Will he interpret according to a controversial though completely legitimate doctrine of judicial minimalism? Or will he adopt an activist stance cloaked behind the front of strict constructionism? I was greatly heartened by the statement he made during the district court confirmation hearing to the effect that he prefers to let the case dictate the judicial approach, rather than applying an all-encompassing judicial approach. Flexibility and willingness to change one's mind to me are antithetical to ideology.

Some people might wonder, "well what's the difference which way he arrives at decisions, as long as they're ultimately going to strip rights away from causes we care about?" Aside from the philosophical appeal of a judge adhering to due process, I think there are a few more concrete differences. Many people seem to have the idea that judges are, for lack of a better word, tools. In reality, every judge, even Scalia, takes their responsibility with solemn gravitas. Judges read thousands of pages a day, and that doesn't even count any deliberation. All of them are trying to do what they perceive to be legally right. Thus their legal philosophy or approach can be critically influential at unexpected moments. Also, if you think about the fact that the need to counterbalance a small group of judges who consistently end up deciding on one side of the issues necesarilly distorts the actual views of the other members, it's apparent why practical vs. constructionist conservativism represents a significant difference structurally speaking.

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