Standards for Assessing Judicial Nominees
posted by Gerard Magliocca
A question raised by the Sotomayor nomination that is an issue for all judicial nominees is what standard should be used to determine whether someone is too extreme or “outside the mainstream” to be confirmed. (For purposes of discussion, let’s exclude issues about ethical problems or a lack of credentials.) The main problem that I have with these confirmation fights is that I don’t know what standard is being applied.
One approach would say that if you think that a particular method of judging is right and a nominee does not conform to that method, then that person should not be confirmed. Under this premise, though, you would probably have to oppose most of the judges nominated by a President of the other party (at least in an era, like today, where the parties differ sharply on how judges should judge). The burden of proof would be on the President to persuade a senator from the other party that a given nominee shares (to a sufficient degree) that senator’s world-view. (Maybe this is only true for circuit judges and Supreme Court Justices, who have more interpretive latitude and power than district court judges).
Another approach would ask whether the nominee has views that are an outlier in comparison only to those who do share the President’s outlook on judging. In this case, the assumption would be that the President should get his choice unless the nominee’s views are rejected by a significant number of her “fellow-travelers.” That requires a more diligent analysis of the nominee’s record, as it is often obvious whether somebody shares your judicial method, but it ‘s harder to show that her attitudes are significantly different from those who follow a similar approach.
Which standard you choose makes a difference. For example, Ed Whelan (over on “Bench Memos”) has written a number of critical posts about the nomination of Goodwin Liu for a seat on the Ninth Circuit. (As I mentioned in a prior post, I know Goodwin and think that his selection is excellent). Whelan seems to be using Standard #1 — he is not convinced that the nominee shares his judicial philosophy and is therefore skeptical about confirmation. I think that I am using Standard #2 — I am not persuaded that Professor Liu’s views are inconsistent with how most Democrats (including the President) see the role of judges.
Now this does not answer the question of which standard is better, though I would point out that Standard #2 does show more respect for the fact that the President is elected in part because people share his view of how judges should act. Moreover, if you adopt Standard #1 I don’t see on what grounds you can complain about the rejection of your favored nominees on ideological grounds.
March 11, 2010 at 11:15 am
Posted in: Current Events, Uncategorized
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Responses (10)
Spencer Waller - March 11, 2010 at 12:18 pm
I guess I take a modified version of Standard 1. Elections matter, some benefit of the doubt should be given to the President in all appointments matters. However, I have no problem with a Senator who explicitly says that a judicial appointee’s views are so diametrically opposed to their own that they will oppose them regardless of their professional qualifications. My problem is that virtually no Senator has ever been that forthright.
Maryland Conservatarian - March 11, 2010 at 12:28 pm
How about a modified, special-situation Standard #1 – you give the President the same amount of deference that he gave his predecessor…do you think our current President would sign on to that?
Gerard Magliocca - March 11, 2010 at 2:36 pm
Oh, I think that the President was totally wrong in voting against Roberts and Alito. We shouldn’t be following his example.
Alan - March 11, 2010 at 5:13 pm
“I would point out that Standard #2 does show more respect for the fact that the President is elected in part because people share his view of how judges should act.”
Well… Does that mean that the general public keeps shifting its view of how judges should act? Because the president’s view of how judges should act just keeps going back and forth:
1968, 1972: Nixon
1976: Carter
1980, 1984: Reagan
1988: Bush
1992, 1996: Clinton
2004: Bush
2008: Obama
Yes, yes, I realize you said this isn’t the only reason why presidents are elected, but instead is only one reason. But if it’s a fact that the public elects a certain president based on their agreement with that president’s judicial philosophy, then exactly which judicial philosophy is it that the public has?
I don’t think the general public has any judicial philosophy to speak of (not even a very-simplistic-and-crudely-developed-but-still-substantial judicial philosophy). I think they have only a few vague (and sometimes conflicting) instincts about what judges should and shouldn’t do.
I speculate that most people could go either way on this issue, depending on which aspects of the debate are emphasized when they’re listening.
brad - March 12, 2010 at 7:55 am
Does it matter if the nominee himself expressed a view on which is the appropriate standard?
AnonForever - March 12, 2010 at 11:17 am
The issue with the nomination of Goodwin Liu, which his supporters seem loathe to acknowledge, is that he himself elucidated precisely the first standard in his testimony against Justice Alito’s confirmation. He was the one sent up to say that Alito was outside the mainstream and should not be confirmed, and but not for that testimony there wouldn’t be the degree of resistance to his confirmation that there has been.
This may be a bit unfair, but you reap what you sow with these things. For many people on the right, his testimony was unfair and suggested a belief that conservative legal principles are not just wrong but invalid and beyond the pale, and that the only proper mode of legal thought is mainline liberal legal thought and (implicitly) much else to the left of that.
Stephen B - March 12, 2010 at 1:28 pm
I think it should be a combination of 1 and 2.
I think its ok to vote against someone if you don’t agree with their judicial philosophy.
However, I think whether or not the filibuster is used should be based on standard 2.
So looking at Liu’s nomination I think it’s fine if Republicans refuse to vote for him, but I think it would be wrong for them to filibuster him.
Gerard - March 12, 2010 at 2:55 pm
I’m not clear on one point. Are those of you who are unhappy that Obama (and Professor Liu) opposed Alito saying that they were applying the correct test as Democrats to a GOP nominee, or are you saying that Republicans should apply an incorrect test selectively to Professor Liu?
Alan - March 12, 2010 at 4:05 pm
Maybe they’re saying that people should be treated the way they said others should be treated. So if X says that it’s legitimate to oppose nominees based on ideology, then X should be treated the way that X wanted nominees to be treated, while other nominees who hold a different view should be treated in accordance with their less partisan view. And perhaps (just perhaps) our country has an interest in making sure that no judgeship ever goes to a person who’s so partisan that he or she favors–on principle and in all cases–rejecting nominees who don’t share their views. Maybe reap-what-you-sow is the test itself.
Just a half-thought.
Jonathan H. Adler - March 14, 2010 at 10:18 am
I don’t agree with either approach, and I don’t think either one characterizes Ed Whelan’s either. Indeed, I don’t think anyone actually subscribes to the first approach as it is articulated above. Whatever one thinks of the Liu nomination — and I’m on record saying I’d vote to confirm him — there’s little doubt that he is more liberal and has less practical experience than most of Obama’s nominees, so it’s very understandable why conservatives would be more concerned with his nomination than with others.
As for myself, I don’t think the Senate should concern itself much at all with the judicial philosophy of judicial nominees. I think this is something that should be largely left to the President. Senate confirmation is required largely to prevent the appointment of cronies and unqualified hacks. So long as a qualified nominee has a basic understanding of what it means to be a judge, I believe the Senate should confirm them. [And just to anticipate one potential response: No, I don't believe "a basic understanding of what it means to be a judge" is code for a particular judicial philosophy.]
JHA
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