Primer One: Judicial Philosophy and the Confirmation Process

There’s an old story about two judges, both of whom have achieved larger-than-life status in legal circles. It seems Learned Hand had lunch with Oliver Wendell Holmes, a man he greatly admired, and as the two waited for horse-drawn cabs to different parts of town, Hand wanted to say something profound, something meaningful.

“Do Justice, your honor. Do justice!” Hand cried as Holmes pulled away. Holmes turned and called back to the younger judge.

“That is not my job. My job is to apply the law.”

If Holmes’ response seems odd, it’s because of a recent but fundamental change in the way Americans view the role of judges.

Can’t we make her answer questions, so we know she’s not another David Souter?

The question of the day refers to the Ginsberg Rule—although in practice the rule is probably as old as the Court itself. When Ginsberg, general counsel for the ACLU, was asked for her personal views, she repeatedly and consistently declined to answer, explaining that she could not discuss issues which might come before her on the bench. But this is the U.S. Supreme Court—what issues won’t come before those on the bench?

The answer rests in an area of legal tradition many members of the legislature, the media, and the bar seem to have forgotten: the role of judges. We all know what politicians are, don’t we? In elementary school we hold elections and learn how to yield to the majority. We understand elected representatives. We vote for them—they make rules for us. But who are these men and women with the life appointments? Certainly not part of any democratic process, are they? Well, yes and no, but more on that later.

For now, consider this: a judge is not a politician. A politician is elected by the people—but not until he has spent an extraordinary amount of money and energy campaigning, telling everyone his views. And if he cannot publicize his views, he will not be elected. So when someone is nominated for the Court many expect him to do the same—especially legislators whose careers stand or fall based on their ability to mount effective campaigns. Tell us who you are and what you believe, they cry. But such an argument assumes the man is campaigning—seeking votes from the constituency he hopes to represent. Of course, he is not—and that's the point. A judge does not serve the electorate. He serves the law, and the people only indirectly. If, for the sake of analogy, the judge were said to have a constituency—a body to which he must remain faithful—that “constituency” is the nation’s body of democratically created law. To that end, he swears an oath to uphold the law, regardless of his personal feelings about the cases.

A Supreme Court justice has an even higher obligation. He takes an oath to uphold the Constitution and to faithfully judge between that text and all the lesser laws with which it may be found in conflict. This is the single purpose of the U.S. Supreme Court—analyzing the gray areas between the Constitution and the state and federal laws that cross it. And what about the judge's personal opinion on the topic? It is irrelevant. And most judges know that. In a stark contrast to the life of a politician, what a judge may think about abortion or gun control is to have no bearing on his decision in the legal case before him. That is, the question of what a judge may believe the law should be or ought to be does not come before him. My constitutional law professor called these “oughtness questions,” and though he was no doubt too “progressive” and practical to argue no judge faces such questions, I would argue exactly that. Questions of what the law ought to be are exactly the kind of questions judges are not allowed to ask. The fact is, judges have always “applied the law” as Holmes would put it. Seeking to satisfy his own inner sense of justice was never a judge’s role. In fact, for a judge to look within himself for answers rather than within the Constitution, is arguably a flagrant abuse of power or a serious dereliction of duty. The worst thing a judge or appellate justice can do is to ask himself what he thinks the law ought to be. That question is reserved to the legislators and the voters. When an individual case, with its unique set of facts, arrives before the judge, his role is to apply the law as it has come to him via the democratic process—a challenge great enough for even the sharpest minds.

Our system does not give politicians a vote in individual cases. Nations whose legal systems are so porous that political bosses can control the outcome of legal cases—taking on the judge’s role—are among the most corrupt places on Earth: North Korea, Sudan, Afghanistan under the Taliban, Iraq under Saddam. And yet, most Americans don’t even notice when judges take on a legislative role. Nevertheless, the fact remains that judges are not to ask themselves what they think the law ought to be. What the law ought to be was already determined, by the framers of the Constitution and the voters and legislators who drafted the rest of America’s federal and state law. Consider the contrast: on the one hand you have the Constitution and another state or federal law hammered out in the give-and-take of a lengthy and complex legislative process. On the other hand, you have a judge willing to ignore both while he looks inside himself at some fallable internal compass. Would you be willing to put the fate of America’s future in the hands of a judge contemplating his own navel? Or to put the question in more democratic terms, would you rather bet your nations’ hopes on the beliefs of hundreds and hundreds of people who campaigned on those beliefs, or one a handful of judges who have spent their lives professional lives arguing so many different sides to each question that what they may secretly believe will forever remain a mystery? In other words, it is the politicians who get to follow their hearts. But after legislators draft the law, judges are forbidden to follow their hearts. They must follow the law. This is the democratic process.

The judge’s opinion, therefore, is irrelevant—a distraction at best. And because he is not to seek counsel in his own opinion, his opinions are likewise off limits during the confirmation process. The only question he is to consider is the meaning of the Constitution as interpreted by the Court to date.

This brings us to the more acceptable questions about a judge's character, temperament, and judicial philosophy. When you consider that he is expected to reject his personal opinions, you can see how important these questions are. It is not easy for anyone to ignore their passionately held beliefs and rule in favor of parties they privately oppose. But that is what our traditions require. (Some notable opinions deal with just this issue. For example, as a Catholic, Justice Scalia is opposed to the death penalty, and has noted the same in an opinion—before voting in favor of a law requiring it.)

By now, you're asking--So, just how naive are you, right?

I admit it--In the 1970s the Warren Court ignored this tradition, basing some decisions on their personal opinions and—many believe—little else. Since then, many justices have followed suit. Nevertheless, judges know what is expected of them, even if commentators do not.

The judge's "constituency" is the Constitution, not her personal opinions or even the opinions of her supporters. During the coming battle remember—the nominee must support the Constitution, not Democrats and not Republicans. What matters is not her personal opinions, but her commitment to put those opinions aside when necessary and rule according to the text.