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.
[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:
- 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)
- 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.