Why Judge Nominations Are Suddenly So High Stakes

Over the last 10 years, it certainly appears that the stakes have been raised substantially in judicial nominations, to the point that the approval of federal judges seems to be the number one issue in front of the Senate, even ahead of matters like Social Security reform or tax policy.  Sure, in the 80's we had some high-profile confirmation battles (e.g. Bork, Thomas), but those were for the Supreme Court and might be narrowly interpreted as revolving around issues of abortion and perhaps affirmative action.  Certainly both sides of the abortion debate are gearing up to duke it out over Supreme Court nominations, but most of the current brouhaha in the Senate is over lower level appointments that can't reasonably be interpreted as having much influence on abortion.  So something else must be going on.

To understand what this "something else" is, I want to digress a bit into the analogy of campaign finance (yes, its analogous).  I won't conceal the fact that I think that the most recent round of campaign finance "reform" has been a disastrous infringement on first amendment rights, the implications of which are only just coming to the surface.  However, my opinion of it is irrelevant to the analogy.  While proponents of campaign spending restrictions point to the "corrupting influence" of large sums of money in the election process, what no one ever mentions, though, is why such large sums of money are being spent in the first place.  It is this latter issue on which I want to focus.

The reason that politics have become so high-stakes, at least in dollar terms, is because the government controls so much more of the economy and our lives.  A century ago, the federal government had the power to raise and lower tariffs, and some limited control of the money supply, and occasionally gave out land grants to new railroads, and that was about it.  Today the government can tax an individual or corporation six or seven different ways, determines how much you must pay your employees, controls much of the health care system, holds product design or pricing approval authority for many industries, controls access to critical raw materials, etc etc.  If the government decides it does not like a particular person or industry, it can charge it with billions in extra costs in taxes -- or if it finds an industry politically expedient, it can pump it up with billions in subsidies.    Every year, the government takes literally trillions of dollars from one unfavored class of citizen and gives it to a more politically favored class. 

With stakes this high, it is no wonder that more and more people are willing to pay more and more money to let their voice be heard in the political process.  Greater amounts of money flowing into politics is not a sign of a broken democracy, but just its opposite.  More political spending means more money spent on speech, which in turn results from more people trying to add their voice to the political process more intensely.   Rather than deal with the root cause, the growing power of government to arbitrarily transfer wealth, the country instead lurches from one half-assed attempt at political speech control to another.

So here is where I am going with this analogy.  Today, it increasingly appears to people that the process for approving Presidential judge nominations in the Senate is broken.  The opposition party, first with some tentative steps by Republicans under Clinton and then with wholesale defiance by Democrats under Bush, are increasingly making the appointment of judges tremendously contentious.  I would argue though, as with campaign finance, that the problem is not with the process, but with the changing power of judges.  Over the last 30 years, judges have increasingly gone beyond interpreting and applying law to creating new law on their own, a power that is as constitutionally unjustified as it is unchecked.

To understand this, lets first start with an example of what I would consider appropriately constitutional behavior by judges.  This is an example from a case brought against the Bush Administration, demanding the release of terrorist suspects the administration has held indefinitely.  The Bush administration argued that the war on terrorism was different from other crimes, and that it required an enhanced ability to indefinitely intern suspects.  The US District judge in the case disagreed, and note particularly the language he uses (emphasis added):

U.S. District Judge Henry F. Floyd ruled Monday that the president of the United States does not have the authority to order Jose Padilla to be held indefinitely without being charged.

"If the law in its current state is found by the president to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the president should prevail upon Congress to remedy the problem," he wrote.

I can find no more perfect example of a judge appropriately fulfilling his constitutional role.  For him, the necessity or merit of being able to hold terrorist suspects without charges is IRRELEVANT to him.  Judge Sweet might well consider holding suspects without charges in these cases to be the most necessary thing in the world, or alternately the most reprehensible.  But his job is not to decide if such a power SHOULD exist, his job is to decide if such a power DOES exist.  And he says it does not -- and to call the legislature if you want one, because it is their job to create new law. 

Unfortunately, there is a growing theory of jurisprudence that creates an expanded role for judges.  In this theory, judges are empowered to act sort-of as the institutional Dali lama, the wise person who descends from the mountain from time to time to correct moral lapses made by legislatures.  If you are a Star Trek fan, think of this theory placing judges in the role of the Organians, parachuting into human affairs from time to time to correct moral problems.  As Justice Scalia put it in a recent decision:

The Court thus proclaims itself sole arbiter of our Nation's moral standards, and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures.

The problem with this theory is two-fold.  First, it calls for making judges the rulers in a benevolent dictatorship, for there really are no checks on judges elected for life who suddenly have the power to create new law.  Sure, the notion of a benevolent dictatorship of people with strong moral compasses has been a compelling notion to some through the centuries, but it never works and always ends up getting abused.  Which leads us to the second problem with the theory, which is that there is no constitutional basis for judges creating new law, nor would the power-paranoid writers of our Constitution ever have allowed it. 

Now, you may be thinking me paranoid to think of judges as taking on the power to write law.  I offer proof in two parts.  First, doesn't the exponentially higher stakes and greater attention today in approving judge appointments point to the fact that judges somehow have more power than they had a few decades ago?  Second, lets look at an example.

I covered this one in this post on media privilege, and quoted from the NY Time editorial:

[Judge Robert Sweet] explained that the United States Court of Appeals for the Second Circuit in New York recognized a qualified First Amendment privilege that protects reporters from being compelled to disclose their confidential sources

Judge Sweet defended the existence of this privilege by saying:

he took note of the important role of confidential sources in news investigations of the Watergate, Iran-contra, Monica Lewinsky and Abu Ghraib scandals

Do you see the difference from Judge Floyd's opinion above.  In this case, the Judge does express his opinion, that confidential sourcing has played an "important role" in unwinding a number of political scandals.  He uses this as a justification to create a privilege for reporters to conceal evidence and ignore subpoenas from a federal investigation.  Recognize, as background, that whatever shield law for reporters that may exist in your state, there is NO press shield law allowing concealment of sources at the Federal level.  And, the First Amendment itself only says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

I don't see anything in that text that implies that the press can legally get away with obstructing justice while other citizens not in the press, like Martha Stewart, go to jail for obstructing justice.  Now, you might think that the press should have such a privilege.  Heck, I might in fact support some type of privilege.  But the fact is that right now, it does not exist under the law and judge Sweet should have given judge Floyd's answer, which I can't resist paraphrasing:

If the law in its current state is found to be insufficient to protect the media in doing valuable work, then the press should prevail upon Congress to remedy the problem

Now I am sure that I am vulnerable here to Constitutional scholars saying that I am a neophyte to Constitutional Law and I don't understand the chain of court decisions that lead to, in the case above, the press privilege precedent.  I have two responses to this.  First, I am tired of Constitutional Law being made into this arcane specialty where only a few experts can participate in the discussion, like Jesuits arguing about some arcana of a papal encyclical.  The Constitution is a very short and straight-forward document.  Anyone can understand it, and should.  I don't need 10 years of legal training and a piece of paper from the state bar to tell me that I see nothing about hiding information from police investigations in the First Amendment (heck, there are only 50 words there - where can it be hiding?)

My second response is specifically aimed at the chain-of-precedent reasoning for so many of the new rights and privileges that seem to be created nowadays.  Of course, precedent is critical in making law work - Common Law is all precedent and even in our constitutional system, relying on precedent saves a lot of rework (e.g. the Supreme court already decided this case X way so until they revisit it, we will follow that precedent). 

However, something else seems to happen in this chain.  Have you ever taken an original document, and Xeroxed it, and then made a copy of the copy, and then a copy of the copy of the copy, etc. through 10-20 generations?  What happens?  Typically somewhere along the way, some small flaw or spot on the machine causes a spot to appear on the copy.  As the copy is copied through successive generations, the spot grows and begins to stand out, until it is just as much a part of the document as the original text.  The spot, however, is an artifact that is reinforced through generations, like kids repeating a mistake in the game telephone.  That is what some of these court decisions feel like to me.  How did the NY circuit court find a press privilege - well, someone found a very very limited privilege out of thin air years ago, and then another judge used that as a precedent for expanding the privilege, until it is set in concrete today.  Just like the document experts in the CBS memo fraud want to get hold of originals of the documents to remove all the artifacts of copying to make the best decision on authenticity, so I in turn wish that courts would sometimes set aside all those intervening layers of other judges' decisions and just go back to the original damn document and work straight from the Constitution.

Liberals and some libertarians support have supported this theory of jurisprudence to date because to a large extent many of their causes have been net beneficiaries.  And, if history teaches anything, trashing constitutional controls to achieve near-term policy goals nearly always comes back to haunt those who do it. I understand the temptation -- for example, I oppose the death penalty for minors, and left the recent Supreme Court decision on the death penalty out of this post because I thought it a reasonable role for the Court to reinterpret "cruel and unusual".  But others, including Professor Bainbridge whose work I like a lot, and Justice Scalia whom he quotes, would argue that I am letting a favorable outcome blind me to the same problem of courts writing law. 

Postscript:  You may have noticed I did not mention Roe v. Wade.  In fact, I tend to avoid abortion issues like the plague.  In part this is because I have friends that are strongly, perhaps even radically pro-choice and friends who are strongly, perhaps even radically ant-abortion.  Like a lot of Americans, I believe that a fetus is not a human life at conception plus one day and it is very definitely a human life to be protected at birth minus one day, and I worry a lot where the dividing line is in the middle between life and non-life.  However, I will make two comments in the context of this post about Roe v. Wade that I think are fairly belief-neutral:

  1. I have never understood how "privacy" drives legality of abortion.  The clear question is "is the fetus a human life".  If it is not, then since it must instead just be tissue in a woman's body, then I accept her right to do with it as she pleases.  However, if the fetus is a human life, then it has rights of its own and the woman may not violate these except in special circumstances, no matter how much privacy she has.  So the decision is really one of "is the fetus a life"?  The Constitution does not give us much guidance on this question, but typically these types of uncertain decisions have been left to the states.  It is only with Roe v. Wade that the Court began taking on a new role of exercising a moral override over legislatures in certain areas (see Organian / Benevolent Dictatorship example above)
  2. I can't find a privacy right in the Constitution, though I will say I wish it was there, and would support a well-worded amendment in that area.  However, if the Court in its greater wisdom feels like there is a privacy right buried in there somewhere that restricts government intervention into what we do of our own free will with our own bodies, then there are a HELL of a lot of laws out there that need to be declared unconstitutional beyond just anti-abortion law, including:  narcotics laws, prostitution laws, the FDA, the tobacco settlement, alcohol prohibitions, helmet laws, seat belt laws, etc.
  • Scott P

    Terrific post. I, like you, avoid discussing abortion but am also interested in where the line lies between fetus/unborn infant.

    I've learned that typically a fetus' heart starts beating between 18-22 days. Could that possibly be it? It makes sense to me, but there might be a chance a woman doesn't even realize she's pregnant until after that, but I don't know.

  • boo

    Great post. I often think the same thing myself, but how specifically do you turn this situation around, without the entire system collapsing first? I don't see any historical precedent for large systems voluntarily shrinking themselves and devolving power that has been given them, especially if people keep voting for larger and larger government (which is rational in terms of short term self-interest, given the system as it currently operates).

  • http://www.solomonia.com/blog/archives/005563.shtml Solomonia

    Carnival of the Vanities #129

    Welcome, welcome, welcome, to the 129th edition of Bigwig's Carnival of the Vanities, where bloggers from all around the blogosphere submit their own under-appreciated postings, rather than waiting for others to notice them. As your host, I hope you st...

  • http://www.solomonia.com/blog/archives/005563.shtml Solomonia

    Carnival of the Vanities #129

    Welcome, welcome, welcome, to the 129th edition of Bigwig's Carnival of the Vanities, where bloggers from all around the blogosphere submit their own under-appreciated postings, rather than waiting for others to notice them. As your host, I hope you st...

  • http://www.solomonia.com/blog/archives/005563.shtml Solomonia

    Carnival of the Vanities #129

    Welcome, welcome, welcome, to the 129th edition of Bigwig's Carnival of the Vanities, where bloggers from all around the blogosphere submit their own under-appreciated postings, rather than waiting for others to notice them. As your host, I hope you st...

  • http://amendment10.tripod.com Ben DoubCrossed

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

    I don't see anything in that text that implies that the press can legally get away with obstructing justice while other citizens not in the press, like Martha Stewart, go to jail for obstructing justice. Now, you might think that the press should have such a privilege. Heck, I might in fact support some type of privilege. But the fact is that right now, it does not exist under the law and judge Sweet should have given judge Floyd's answer, which I can't resist paraphrasing:

    ==
    I agree with the above post. However, would like to add that the 'press' mentioned in the 1st Amendment referred to the right of every citizen to use same without the freedom being abridged by any law written by Congress.

    Corporations attempted to get Congress to write legislation granting them 'rights' from 1781 until 1886 when:

    "the Supreme Court ruled no such thing in 1886. The 'corporations are persons' ruling was a fiction created by the court's reporter. He simply wrote the words into the headnote of the decision. The words contradict what the court actually said. There is, in fact, in the US National Archives a note by the Supreme Court Chief Justice of the time explicitly informing the reporter that the court had not ruled on corporate personhood in the Santa Clara case." -- Thom Hartmann, Dinosaur War, The Ecologist, December/January 2002 Issue

    "[A U.S.] Supreme Court ruling in 1886 ... arguably set the stage for the full-scale development of the culture of capitalism, by handing to corporations the right to use their economic power in a way they never had before. Relying on the Fourteenth Amendment, added to the Constitution in 1868 to protect the rights of freed slaves, the Court ruled that a private corporation is a natural person under the U.S. Constitution, and consequently has the same rights and protection extended to persons by the Bill of Rights, including the right to free speech. Thus corporations were given the same "rights" to influence the government in their own interests as were extended to individual citizens, paving the way for corporations to use their wealth to dominate public thought and discourse. The debates in the United States in the 1990s over campaign finance reform, in which corporate bodies can "donate" millions of dollars to political candidates stem from this ruling although rarely if ever is that mentioned. Thus, corporations, as "persons," were free to lobby legislatures, use the mass media, establish educational institutions such as many business schools founded by corporate leaders in the early twentieth century, found charitable organizations to convince the public of their lofty intent, and in general construct an image that they believed would be in their best interests. All of this in the interest of "free speech." -- (Bold Emphasis Added) Richard Robbins, Global Problems and the Culture of Capitalism, (Allyn and Bacon, 1999), p.100

    Furthermore, there are still no licenses or boards to pass to become a member of the press.

    Rights:

    Kentucky Constitution, Section 8
    Freedom of speech and of the press.

    --------------------------------------------------------------------------------

    Printing presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof. Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.
    Text as Ratified on: August 3, 1891, and revised September 28, 1891.
    History: Not yet amended.

    Note it is state constitutions that define citizen's freedom of the press and the 1st Amendment only instructs the federal government to keep their hands off. This is consistent with the concerns of the individual states in creating a 'federal' government and
    one of the guarantees they demanded before giving up part of their authority to the union.

    Side note, the King of England wanted every America press (the device) to have a unique number carved on the platen so every page could be traced to its source. This why anonymous speech, another victim of campaign law, was highly prized in early America.
    ==
    The idea of professional newsmen with special rights protected by the 1st Amendment is part of the dumbing down of America.

    In fact the idea of editorials being separate from the rest of what is published by the press is a marketing ploy devised sometime around 1920 to add legitimacy to the claim of impartiality.

  • http://amendment10.tripod.com Ben DoubleCrossed

    A Response to Coral Ridge Ministries' Request For Money to Promote
    Religious Exception to Campaign Finance Laws

    You have put on part of the armor and are fighting with part of your
    strength, and it is a battle you will loose for us all!

    Would you encourage your Christian flock to pick and choose the parts of
    the Bible they are comfortable with and only honor those parts? How
    can you defend freedom of religion and not freedom of speech, press and
    assembly as well?

    Your broadcasts rightly warn of the dangers of activist judges and their
    anti-Christian judgments, but the answer is not raising money for a PR
    campaign to influence the selection of conservative judges. Law means
    fixed, and the role of judges, as you said on your TV show, is to
    interpret the law and not write it. Your folly is to mount a Trojan
    horse campaign in full view of the enemy! Oh please, evil sirs, do not
    ignore the law and oppress me anymore.

    Existing Congressmen and Senators are enablers of the federal court's
    government by tyranny. By making a circus of advise and consent and
    insisting on nominating candidates who share their conservative or
    liberal agendas, our lawful representatives divest themselves of their
    responsibility for making laws that conform to the Constitution and are
    approved by the represented. We need Congress and the Senate to reign
    in the "Activist" courts and reassert their authority to write laws. To
    force our elected representatives to be accountable to their oaths of
    office, 'We the People' must be able to hire and fire.

    To make this happen, we must eliminate so called Campaign reforms that
    practically guarantee incumbents will be re-elected and that no "new"
    political party can supplant the Democrats or Republicans, despite the
    fact that over 1/3rd of voters are now registered independent. When the
    legislative branch passed the Bipartisan Campaign Reform Act, many among
    them thought it would fail to pass constitutional muster and that the
    Supreme Court would overturn at least parts of it. George Bush
    questioned BCRA's Constitutionality but still signed it into law.

    If you study the history of Federal Campaign Laws, you will find they
    are a recent oppression of the Bill of Rights. There were not federal
    campaign regulations until 1907 and no enforcement mechanism until 1975.
    This is because there are no federal elections, only elections for
    federal office held in the individual states. The tenth Amendment
    grants authority to regulate elections to the states and the people.

    We the People currently have a friend on the six member board of the
    Federal Election Commission in the person of Professor Bradley Smith. I
    believe it was Senator Ted Kennedy who objected to Mr. Smith's
    appointment, as Bradley Smith is strident in his objection to the FEC
    and believes it is unconstitutional. Senator Kennedy questioned whether
    Mr. Smith could be relied on to perform his duties given his belief.
    Mr. Smith assured him he would abide with the law, even though he
    objects to it.

    Mr. Bradley Smith's situation is a metaphor for Coral Ridge's approach
    to fixing our broken Republic. When Mr. Smith's tenure is up or his
    voice is not the in the majority, the Constitution no longer applies!
    We need to restore the broken system, not apply a band-aid.

    While there is still a chance, put on the full armor, defend the whole
    1st Amendment and let's leave it all out on the field!

  • grim

    A few comments to the original post and follow-ups:

    First, "I can't find a privacy right in the Constitution, though I will say I wish it was there, and would support a well-worded amendment in that area. However, if the Court in its greater wisdom feels like there is a privacy right buried in there somewhere that restricts government intervention into what we do of our own free will with our own bodies, then there are a HELL of a lot of laws out there that need to be declared unconstitutional beyond just anti-abortion law, including: narcotics laws, prostitution laws, the FDA, the tobacco settlement, alcohol prohibitions, helmet laws, seat belt laws, etc."

    Privacy is a subcontext of the protections against illegal search. That's in your top 10 amendments. There are still laws prohibiting activities on the Sabbath just because it is the Sabbath. We should probably kill some of the first amendment violators before going after prostitution laws (which, like marriage, probably shouldn't have any governmental oversight beyond health).

    I do enjoy the term "activist judges" because it means nothing but the fact that someone interpreted the law differently than you would have liked. Let's put things in perspective, I don't know any laws prohibiting women from leaving the house during their menstual cycle. Nor do I know any Christians who follow this clearly defined rule in their Bible. So the fact is that Christians in this country do pick and choose what parts of the Bible they will and will not follow. We talk about the 10 commandments being ingrained in our legal system, but only half of them appear in any fashion in our legal codes.

    Here is the problem, you can not have freedom to practice one relgion without freedom from practicing others. Members of public office are, like teachers, in a unique position to influence beyond the simple status given to most strangers. We consider it inappropriate for a teacher, because of their position, to romantically engage with a student even at the college level. It is inappropriate for a representative of the State to embrace one religion, because almost all relgions have as a basic tenet that every other belief is wrong. Stating that one is right equates to stating that others are wrong. And if you are a believer, it is not possible to divorce yourself from that understanding of God's will. This is why it is imperative that a judge interpret the law and the Constitution without embracing God's will at all. And this is why the seperation of church and State is so key in the argument regarding judges.

    Personally, I wouldn't mind seeing some of this campaign reform rolled back and instead have efforts put forth to stop 'news' agencies from pushing agendas. It is absurd that the media falls into this 'liberal/conservative' classification. It is also absurd that reporting the truth about casualties gets defined as 'liberal'. The constitution is over 2 centuries old and if you believe in it, you are 'liberal'? does this mean the only real conservative is Torquemada? Actually, it might....

    Finally, let's talk about the real danger of saying that a simple majority should be allowed to stop discussion or debate. If you went out in 1950 and asked the public, over 70 percent would have told you there should be a law prohibiting inter-racial marriages. It might be over 50 percent even now. Should we have passed an amendment to the Constitution? There was even biblical reference used to promote this viewpoint. Freeing slaves, allowing women to vote... the greatest accomplishments toward freedom and democracy have been driven by the minority viewpoint and by keeping argument alive. And when injustice uses the same tools, that gentleman Senator, injured by a recent stroke, will raise the 60th hand and say 'aye'. True progress, genuine democracy, is not the victory of the bigger team, it is the realisation of the rules or justice and equity that are so universal as to garner the votes of all faiths and all parties.

    humbly submitted....

  • silentfire

    Even if the fetus is a human being, it seems to me that the woman has a right to control what goes on in her body. Regardless of the current state of the fetus, the woman should have the right to control what happens to her body, and remove the fetus if she so desires. Now, if the fetus can survive outside her body, then it has the right to be removed in such a way that it survives and has a chance to live.

    Consider as a analagous situation one where there are two people, person A and person B. Person A has a liver which no longer functions, and can only live if he recieves a liver transplant. Person B is, for whatever reason, the only person on the planet who can donate part of his liver to person A. This procedure will have some risks, but person B is likely to survive (similar to childbirth, which is much more likely to result in the death of the mother than having an abortion). However, person B will be permanently damaged by this procedure (much like carrying a child for 9 months permanently changes a woman's body - nothing life-threatening, but it won't be good for him).

    Clearly, both of these individuals have a right to live, just as both the mother and the fetus have a right to live. However, the question which must be decided is if the fetus's right to live outweighs the mother's right to decide what happens to her body. Personally, I believe that an individual should be able to choose what happens to his/her body, and should not be forced to put his/her life in danger or suffer permanent physical damage just so that another can live.