JB

Matthew Yglesias argues:

Ideologicially diverse appointments do, however, have another value, namely that they demonstrate the good faith of the nominator. I would be much more inclined to believe, for example, that Bush has nominated Miguel Estrada simply because of his judicial excellence if the Bush nominees taken as a whole demonstrated a wide degree of ideological diversity. Given that, in fact, Bush only seems to nominate conservatives to the bench, I have every reason to believe that ideology rather than excellence was the controlling factor in the Estrada nomination. The point isn't that the bench should be bipartisan for the sake of bipartisanship, but rather that a president who doesn't want his nominees judged on the basis of ideology shouldn't be selecting his nominees on the basis of ideology.

It is rather rare historically that Presidents choose judges primarily on grounds of excellence. There are such examples: I mentioned Hoover's appointment of Cardozo in a previous post. Competence counts for something, to be sure, (especially as a filter that limits the pool of acceptable candidates), but the most common reasons driving judicial appointments historically have to do with party affiliation, demographic characteristics (in the old days, the state or region that a nominee came from, or their religion, and more recently, race, gender and ethnicity), paying off political favors to constituents, or, in case of Justice McReynolds, Wilson's rather obnoxious and irascible Attorney General, kicking the nominee upstairs. However, one of the most important reasons for judicial appointments has been what Sanford Levinson and I have called "partisan entrenchment," the desire to shift the meaning of the Constitution (and federal law generally) in a preferred ideological direction. This process begins with the Midnight Judges Act in 1801, when the Federalist party attempted to stock the courts with its allies (leading to the appointment of Chief Justice John Marshall), and has continued to this day. Partisan entrenchment is not an exceptional or deviant feature of presidential nominations, but rather a fairly standard practice. Some presidents are very interested in shifting or preserving the ideology of the bench, while others (like Eisenhower, as a recent example) care far less about ideology and are mostly interested in political considerations like appealing to the Catholic vote, for example (which is what led to Justice Brennan's appointment.).

Matthew suggests that diverse appointments "demonstrate the good faith of the nominator." To me, this begs a very serious question, which is whether Presidents are acting in bad faith when they try to reshape the courts (and thus the positive law of the Constitution) through a policy of partisan entrenchment. Sandy Levinson and I have argued that partisan entrenchment is the most important source of constitutional change outside of Article V. An interesting question for Matthew to consider is whether Franklin Roosevelt's appointments of Hugo Black, William O. Douglas, Felix Frankfurter, Robert Jackson and Frank Murphy were in bad faith because Roosevelt wanted to change constitutional law to uphold aspects of the New Deal, or whether Johnson's appointments of Thurgood Marshall and Abe Fortas were in bad faith because he wanted to push the country further to the left on key issues like race and poverty. In like fashion, should we say that Richard Nixon's appointments of what he thought at the time were "strict constructionist" judges (Burger, Blackmun, Powell, and Renhquist) or Ronald Reagan's appointments of Sandra Day O'Connor, Antonin Scalia, and Anthony Kennedy were in bad faith because both Nixon and Reagan wanted to take back the federal courts from the wicked Warren Court and its liberalism?

What I am trying to put in issue, in other words, is the central question of whether partisan entrenchment is not a normal and perfectly legitimate form of judicial appointment strategy, and so the accusation of bad faith is inapposite. If politicians of the other party don't like the President's nominees, they can and should speak up and oppose them, something which has happened with considerable frequency in the country's history. Actual up and down votes are only the tip of the iceberg: Most political opposition is successful in that it prevents some people from ever being nominated in the first place.

To be sure, a President can be accused of bad faith if he says that party affiliation and constitutional values have nothing whatsoever to do with his appointments, but I haven't really heard Bush say that. What he and his supporters have said is that they want judges who will uphold the Constitution and the laws and construe them in accordance with the values of the Framers, which, to a conservative Republican, just means cutting back on liberal precedents and pushing forward conservative interpretations of the Constitution. Republicans don't see themselves as putting their personal preferences into the Constitution any more than Democrats do; they see themselves as offering the best interpretation of the Constitution, and thus following the law. Democrats, especially liberal Democrats, will surely disagee, but that's what a political process is for. That's why Democrats in the Senate (and moderate Republicans as well) should resist nominees that are too conservative or whose views suggest that such nominees will move the law in directions that are bad for the country. This is part of the advice and consent power of the Senate, one of the central checks and balances in the constitutional system, a structural guarantee that allows ambition to counter ambition. The Senate acts as a check on the Executive, leading the Executive to nominate people who are politically palatable to most Senators; this check on Executive power usually succeeds in keeping judicial appointments more mainstream than they would otherwise be if the President had an entirely free hand. One of the ways this checking function is signalled is through a public focus on qualifications, but qualifications aren't the only thing that the Senate cares about historically.

The strongly conservative nominations that we see from Bush are not due to his lack of good faith. They arise from the fact that Bush's people care a lot about judgeships and about moving the Constitution more in line with their interpretation of it. The Bush people don't care too much what the Democrats think because they control all three branches of government. The current Democratic filibuster of two judicial nominees (while letting many many more through, I might point out) is not the product of Republican "bad faith" but the product of Democratic political impotence, the inability of Dems to get Bush to compromise in the way that most Presidents usually compromise with leaders of the other party. Because Bush's style is not to compromise except when absolutely necessary, we have the current situation. If he compromised more, and nominated more moderate candidates, you wouldn't see filibusters from the Democrats. Compromise is the way that the system usually works, but we have a President who doesn't feel the need to compromise on much because he has a very disciplined Republican majority in Congress. His compromises are largely with forces inside his own party, which in some ways reminds me of Roosevelt's judicial appointments strategy.

That said, is ideological diversity on the federal bench a good thing? Well, often it is, especially if you are in the minority. But I'm not at all sure that Lyndon Johnson should have appointed a racial conservative to fill Tom Clark's seat in 1967 instead of Thurgood Marshall because the Warren Court was getting too liberal, and Marshall's appointment would push it even further to the left. Nor am I sure that Franlkin Roosevelt should have started to appoint some Lochner era conservatives in 1940 because there were just too many New Dealers on the Supreme Court. Rather, ideological diversity on the federal bench is produced through the give and take of regular elections, in which the parties take turns in the White House, and through political pressure by opposition politicians on the President. Ideological diversity on the federal bench, in short, is a product of democratic elections and the separation of powers. If the country wants to keep returning conservative Republicans to office, we are going to get increasingly conservative judges and Justices over time, and the content of American constitutional law will change accordingly. If you don't like that, there is a pretty obvious solution.