Borking: A Rule Book

Fifteen years after Robert Bork got thumbs-down and 11 years after Clarence Thomas got thumbs-up, the process of Senate approval for White House judicial nominees remains a festival of disingenuousness. Presidents claim they have picked the best candidate based on merit and accuse opponents of corrupting the process with “politics.” Nominees pretend to be open-minded about issues they have thought about for years and reached a firm conclusion long since. Senators zero in on minor foibles when their real concern is how the would-be judge will rule once he or she is appointed for life. The term “borking” has come to mean unfair opposition to a judicial nominee, but what is borking and what is legitimate “advice and consent,” as called for under the Constitution, remains unclear.

Two current nominees for appellate judgeships—one level below the Supreme Court—are mired in all this uncertainty and confusion. Michael McConnell is a very smart and very conservative law professor. (Click here  for his writings in Slate.) His smarts are one reason that some liberals oppose him—who needs another Scalia?—but they feel they cannot admit this.

The other nominee, Miguel Estrada, obviously was chosen in part because he is Hispanic. The conservative confusion about judges and racial preferences is near-total. What they claim to deplore most in a judge is “activism”—the propensity to reach out and overturn laws and policies of the elected branches of government. Yet the specific issue that excites them most is minority racial preference, which they want unelected judges to overturn wherever the elected branches have established it. Meanwhile, conservative presidents practice flagrant racial preference in filling judgeships and other government jobs. More Hispanic judges is a good idea, and a good example of justified racial preference. But most conservatives feel they cannot admit this.

Let me help here, with two fairly simple rules: 1) Politics is OK; and 2) tit for tat.

The Constitution’s “advice and consent” envisions a collaborative process that we are not up to at the moment. The phrase was a compromise between giving judgeships to the president and giving that power to Congress. There is no reason to think it means that presidents may consider a potential judge’s ideology but the Congress may only consider his or her competence. Some say that when, as now, the president and the Senate have different ideological dispositions, allowing senators to vote without embarrassment on ideological grounds is a recipe for gridlock. But gridlock is what we have now. Bringing ideology out of the closet is a recipe for compromise on filling judgeships, echoing the compromise in the Constitution.

“Ideology” does mean something special in the case of judges. In practice an ideology is what other people have while you yourself have a judicial philosophy. In theory, though, there’s a real difference. Your ideology tells you what to believe about welfare reform or invading Iraq. Your judicial philosophy tells you whether and how the courts ought to involve themselves in such decisions.

Everyone agrees that the ideal judge should apply his or her judicial philosophy without regard for whether the result reflects his or her ideology. Liberals tend to be less honest about maintaining the distinction between a judicial philosophy they approve of and a particular result they would like. Conservatives, though, are less honest about the possibility of legitimate disagreement about judicial philosophy. Anyone who disagrees is “results-oriented”—and them’s fighting words.

The familiar accusation that senators are “playing politics” with judicial nominations is itself playing politics. What senators should avoid is judging a judge as if rulings were like a politician’s positions on the issues. Senators have every right to make an independent judgment about whether they approve of a nominee’s judicial philosophy, and they have every right to oppose a nominee they disagree with no matter how brilliant or scholarly he or she might be. In assessing a nominee’s judicial philosophy, they need to inquire about his or her analysis and conclusions about specific issues. The alleged distinction between a general philosophy and specific beliefs is one of the silliest conventions of these judgeship battles now. What use is a general philosophy if it doesn’t lead to specific beliefs?

Senators also have the right and duty to make an independent judgment about whether the president and the nominee are playing by these same rules. Has the White House, by any chance, been playing politics with this judicial nomination? Been more concerned with likely results than with philosophy? They ought to be skeptical about any sudden attacks of open-mindedness in nominees known—in fact probably chosen—for their crystalline views. To be open-minded on major legal issues after years of thinking about them for a living is not only implausible but unadmirable.

Federal judges are appointed for life and are supposed to be above politics. The selection process is where politics—aka democracy—is supposed to play a role and the last chance to make sure we have judges who meet the above-politics ideal. Two episodes of recent history ought to gird the loins of any senator going into battle over judgeships. Clarence Thomas swore under oath he had no opinion about abortion and other matters and then never wavered from the opinions he self-righteously denied having. (Of course it’s only been 11 years …)

And then there was Bush v. Gore, the most brazenly politicized court decision of our lifetime, which anointed our current president based on reasoning that was truly shocking in its desperation to reach a particular result. We need no lectures from the beneficiary of this judicial coup d’état about the dangers of mixing politics and judges.