The Editors

The delegates to the Philadelphia Convention of 1787 that drafted the U.S. Constitution had no liking for popular democracy—what the more blunt called “mob rule.” They were reacting against radicals who had taken over the government of Rhode Island and canceled debts. The delegates feared the majority would deprive the minority of its rights. Laws should be constructed, said James Madison, “so as to protect the minority of the opulent against the majority.”

 

In line with this conviction, the Founding Fathers, most of whom were lawyers, constructed a system of checks and balances designed to make it very difficult for any one group through the executive or the legislature to obtain all power.

The Constitution gives to the president, for instance, the right to appoint not only the justices of the Supreme Court but also the judges on the federal circuit courts of appeals. But it gives the Senate the right to advise on and consent to these appointments. And the appointments are for life.

On the whole, this system has worked well. For the past two decades, however, when the presidency and the Senate have been controlled by different parties, it has worked less well. When that happens, the Senate Judiciary Committee’s questioning of the president’s nominees has been unduly delayed or controverted in a partisan spirit or the nominations have died in committee. Both parties have been guilty of this.

At this moment, the Judiciary Committee, with 10 Democratic members and nine Republicans, is sharply divided over two of President Bush’s nominees for judgeships. Mr. Bush has proposed 47-year-old Michael W. McConnell, a distinguished law professor and legal scholar, for the U.S. Court of Appeals for the 10th Circuit and 40-year-old Miguel A. Estrada for the influential U.S. Court of Appeals for the District of Columbia Circuit.

The personal and professional qualifications of these nominees are not contested by the committee’s Democratic majority, but their views on certain hotly debated legal issues are. Professor McConnell has published widely and is on record as opposing abortion and favoring some forms of school vouchers. Because of this, a New York Times editorial instructed the Senate to reject him. Mr. Estrada, who emigrated from Honduras to the United States as a teenager, has already acquired a considerable reputation for his legal brilliance and his work as a federal prosecutor, but he has no list of publications. He too, however, is known to be opposed to abortion.

The Democrats on the Judiciary Committee, led by New York’s Senator Charles E. Schumer, chairman of the subcommittee on courts, have been exploring at length what Mr. Schumer calls the ideologies of the two nominees. That seems to mean not just their juridical positions but also their overall philosophies.

Some inquiry into a nominee’s ideology is appropriate. It can, however, be less searching when nominees for circuit courts are being heard, because judges on those courts do not have the same opportunities to be creative—to make law, as it were—available to Supreme Court justices.

All office holders are required to swear to uphold the Constitution. But in areas where constitutional law is unsettled, nominees for judgeships should not be asked to make explicit affirmations beforehand. If they are, they should be free to decline to answer if they think the independence of their future judgments would be compromised.

While inquiries into judicial philosophy have some legitimacy, murky discussions of ideologies should not be permitted to mask the political positions that the Democratic members of the Judiciary Committee are taking—positions that appear clearly when the nominees are interrogated. The nominees may affirm, as both Mr. McConnell and Mr. Estrada have done, that they will uphold the Constitution and established law. But if they are known to think, or are suspected of thinking, that the Roe v. Wade decision was wrong, they have little chance of being approved by the Democratic majority on the Judiciary Committee even if they would enforce that decision as law.

The Democrats on the Judiciary Committee have so allied themselves with pro-choice groups as to deprive the circuit courts of men and women who would make eminent judges. If this obduracy continues (and is repeated by Republicans when they are in control), those courts may some day be staffed by mediocrities whose chief recommendation is that they have no ideologies whatsoever. The framers of the Constitution never envisioned that sort of imbalance and would have tried to check it if they had.

Comments

john j casey | 10/23/2002 - 5:14pm
So long as judges are going to be legislators for life, others are going to worry about what sort of legislation to expect from them.

As for Roe v. Wade, that was a legislative act, inventing a right that nobody heard of before. Now, 30 years later, reversing it would be another legislative act. Whatever anyone believes about abortion rights, the decision about them is for the legislative branch, not the courts.

What usually comes to mind in such discussions is Brown v. Board of Education, the “dread school decision.” It’s time to face the fact that that also was a legislative act, changing what had been the law for a couple of generations, whatever anyone believes about that law. A judicial decision in that case would have been to remand to the lower court with instructions to find facts as to whether the schools in question were equal, in such matters as per-pupil expenditures, teacher qualifications, buildings, and libraries, and a reminder that the students in question could not be compelled to attend separate schools which were not equal. That would have ended school segregation almost everywhere, and quickly, since almost no place could afford separate schools if they had to get them equal, and the people who believed in “separate but equal” would have had their doctrine preserved, for whatever that was worth to them.

The problem you discuss will be with us until judges stop being legislators, and leave changing the law to the legislative branch.

john j casey | 10/23/2002 - 5:14pm
So long as judges are going to be legislators for life, others are going to worry about what sort of legislation to expect from them.

As for Roe v. Wade, that was a legislative act, inventing a right that nobody heard of before. Now, 30 years later, reversing it would be another legislative act. Whatever anyone believes about abortion rights, the decision about them is for the legislative branch, not the courts.

What usually comes to mind in such discussions is Brown v. Board of Education, the “dread school decision.” It’s time to face the fact that that also was a legislative act, changing what had been the law for a couple of generations, whatever anyone believes about that law. A judicial decision in that case would have been to remand to the lower court with instructions to find facts as to whether the schools in question were equal, in such matters as per-pupil expenditures, teacher qualifications, buildings, and libraries, and a reminder that the students in question could not be compelled to attend separate schools which were not equal. That would have ended school segregation almost everywhere, and quickly, since almost no place could afford separate schools if they had to get them equal, and the people who believed in “separate but equal” would have had their doctrine preserved, for whatever that was worth to them.

The problem you discuss will be with us until judges stop being legislators, and leave changing the law to the legislative branch.

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