Energion Political Roundtable: Appointments to the Judiciary

This week's question for the Political Roundtable: One of the ways in which a president shapes the future of the country is through appointments to the judiciary and especially, the Supreme Court. How do you see each candidate shaping the future of the court, and why is this important? (If you are supporting a particular candidate focus on that one.)

Elections have consequences. Article 2, Section 2 of the U.S. Constitution states in part that the President of the United States

...shall have Power, [to] nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for

Certainly the power to nominate women and men to the judiciary is one of the places where a president can have a lasting impact on the country for years to come. Thus, it is no surprise that some of the most vicious political fights occur around such nominations. The Constitution gives the Congress "advice and consent" powers, but it is not completely clear what that means. At times both political parties have used their power not to advice and consent, but to filibuster and block, which in the long run, is not good for the judiciary or the country. There is no doubt that both political parties have attempted and continue to try to use the independent judiciary as an additional legislative arm for their own political agendas.

The judiciary is to be independent from such political wranglings, but that does not mean it is neutral. Judges have judicial philosophies. It is impossible to come to any text in an objective and neutral way. Hence, I reject the idea that one can have what is referred to as a strict constructionist reading of the text. The current situation matters just as much as the location of the written text. At the same time, I also deny the kind of deconstructionist readings that minimize the importance of the context of the Constitution in favor of the whims of the current moment. To read a text is to interpret it. There is no such thing as a reading that is not interpretive. Having said that, not all interpretations are equally valid. One reading is not as good as another.

Since Presidents have the power to appoint judges, they certainly have the right to choose judges who reflect a judicial philosophy that is congenial to their own. And even though it is fair for the Senate to question a nominee on her or his philosophy, it is completely wrong, in my view, to ask a nominee how she or he would rule on a particular case or issue. (It is fair to ask why a nominee ruled on a previous case.) It is also wrong for anyone in Congress to insist on a litmus test of issues for consent. Both lines of questioning not only undermine the judicial process as it may unfold, but it also gives Congress a central role in the advice and consent process it was not designed to have. The Constitution puts the responsibility of judicial appointments squarely on the President.

Since the judiciary has an impact that can echo through the years, here is one place where the emphasis on the present situation in election year politics is somewhat misplaced. A longer view of elections and politics in general might warrant consideration that voters should think about how their decision in the voting booth, not only effects the current situation (meaning over the next four years), but how it may impact the future (over the next decades) as a reelected President Obama or a newly elected President Romney may make one or two or possibly three nominations to the highest court in the land. Perhaps voters need to ask not only how their views on economics and foreign affairs line up with the candidates, but also on the important issues that come will come before the judiciary, small and large? Landmark decisions made by the Supreme Court can shape and reshape American society forever, and precedent, particularly once it gains traction in further court decisions over the years, is a difficult thing to reverse for those who think the results of such decisions are nothing more than bad law.

But then again, Justices haven't always voted in keeping with their political constituencies either. More than one President has been burned by the surprise decision of a nominee. When that happens, it is a reminder that the judiciary should indeed be independent.

Pollsters are constantly asking voters which candidate they believe will be better for the economy and foreign policy. One does not see too many pollsters inquiring of the electorate as to which candidate will appoint the best nominees to the Supreme Court.

Perhaps they should.
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Other respondents in the Political Roundtable: Bob Cornwall, Joel Watts, Art Sido, and Elgin Hushbeck.