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The Case for Borking.

As the battle over the federal judiciary heats up, progressives must convince the general public of a basic proposition: The judiciary is an inescapably political branch of government whose agents, the judges, should be viewed in much the same way other politicians are.

To say that the courts are political may seem so obvious as to be banal. There is, however, a deep and widespread impulse to deny the political character of the courts. An important manifestation of this denial arises in the context of selecting, confirming, or rejecting candidates for the federal bench. Many people bemoan, for example, what they term the "politicization" of the judiciary (as if there existed a golden age when judicial selection and judicial decision making were uncontaminated by politics). Liberals and conservatives, Democrats and Republicans have taken turns accusing each other of indulging in this unpardonable sin.

Progressives, however, should get off that unproductive rhetorical merry-go-round, accept the ineradicable presence of politics in the judicial arena, and strive to shape the judiciary in such a way that it will produce good, sound, progressive rulings. That will entail, among other things, lobbying on behalf of jurists who will advance the progressive agenda and against those who will be hostile to it.

Article II of the U.S. Constitution empowers the president exclusively to nominate federal judges, while it imposes a check on presidential authority by making the seating of a nominee dependent on the Senate's "Advice and Consent." Whereas the president is armed with veto power over legislation, the Senate, in effect, has veto power over judicial nominations.

Over the course of the nation's history, the Senate has exercised that power over Supreme Court nominees 29 times (and over district and appeals court nominees many times more). In addition to objecting to nominees on grounds of incompetence, dishonesty, or some other personal failing, senators have also voted nay for political or ideological reasons. Opponents blocked George Washington's Supreme Court nominee Judge John Rutledge because of Rutledge's opposition to the Jay Treaty (despite the fact that the Senate had already confirmed him for a previous opening on the Court and that he had just served for an entire Supreme Court term as the interim chief justice). Ulysses S. Grant's nominee Attorney General Ebeneezer Rockwood Hoar was not confirmed because he had opposed President Andrew Johnson's impeachment. Herbert Hoover's nominee Judge John Parker was blocked because of Parker's perceived hostility to organized labor and the advancement of African Americans. And Ronald Reagan's nominee Judge Robert Bork didn't make it because opponents feared, among other things, that he would energetically attack abortion rights.

In principle there is nothing wrong with political blocking, even if doing so stems entirely from one particular issue. Would we now condemn a senator who, prior to the Civil War, voted against a nominee solely on the grounds that the candidate favored slavery? I would hope not. Yet many people sneer at the notion of litmus tests for purposes of judicial selection or confirmation--even as they unknowingly conduct such tests themselves. Litmus tests of all sorts are scattered about the judicial-selection process. When senators ask a nominee whether he or she believes that the proper role of a judge is to interpret rather than make law, or whether the Eighth Amendment should be deemed to prohibit capital punishment--all the while silently insisting upon an expected formulaic reply--they are imposing a litmus test. Today, a candidate would not be nominated, much less confirmed, if he or she failed to genuflect convincingly to Marbury v. Madison (which established the authority of the Supreme Court to invalidate an act of Congress deemed to be in conflict with the Constitution), Brown v. Board of Education (which invalidated de jure racial segregation in public primary and secondary schools), or other once-controversial decisions that have become so thoroughly a part of the conventional wisdom that we no longer even perceive reactions to them as litmus tests of acceptability.

Since senators (and the public as a whole) should feel free to object to a nominee on political grounds, they should also feel free to demand that nominees truthfully divulge thinking that bears upon relevant judicial matters. Nominees--both liberals and conservatives--often claim that they cannot answer certain questions because to do so would be to prejudge a matter that may come before them. But that response is typically a mere dodge to avoid controversy. Senators need not accept this. If a candidate refuses to answer relevant questions, senators should take that refusal into consideration when determining whether to vote to confirm. It makes no sense to offer lifetime tenure and all the power of judicial review to candidates whose thinking about crucial matters is unknown.

A transparent process in which ideological objections to judicial candidates are candidly voiced is a much--needed antidote to the murky "politics of personal destruction." When politicians (again, both liberal and conservative) feel disabled from objecting to candidates on ideological grounds, they search high and low for pretexts on which to object: "He made this lewd statement to a colleague a decade ago," or "She committed this technical infraction of law." Senators should not feel that they have to reveal or attack some personal blemish in order to justify a vote against a nominee. A deep, urgent, political disagreement is sufficient. It should be possible for a senator to acknowledge that a nominee is honorable, competent, and kind while still voting against confirmation because of the way the candidate would likely act as a judge. Nothing personal. Just politics.

RANDALL KENNEDY is a professor at Harvard Law School and the author, most recently, of Race, Crime, and the Law.
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Title Annotation:political aspects of judicial selection
Publication:The American Prospect
Article Type:Brief Article
Geographic Code:1USA
Date:Jul 2, 2001
Previous Article:Halting the Judgernaut.
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