Balkinization: Judicial Nominations and Elections

Judicial Nominations and Elections

Mark Graber

One way of thinking about judicial nominations is that, while the court has a famous tendency to follow the election returns, the court and judicial nominations are also struggles over what election returns mean. Indeed, one might interpret the present debate over Harriet Miers as a debate over the meaning of 2004 (or a set of elections from 1994 to 2004).
For George Bush, the 2004 election was a personal triumph. Americans voted to put him in office. In particular, Americans trusted him to lead the country. It follows from this that the ideal judicial nominee to cement this electoral result is a nominee whose main qualification is personal loyalty to George Bush. If the rest of us are not 100% sure exactly what that means (well, we have a good idea what it means with respect to torture, but can debate whether it means overrule or narrow Roe), so what. Americans in 2004 voted to trust George Bush and we should trust him now.

For many conservatives, the series of elections from 1994 to 2004 were a triumph of a conservative constitutional vision. The precise content of this vision is subject to some dispute, compare the differences between Randy Barnett and Robert Bork, but what is crucial is that Americans have empowered this administration to make fundamental changes in the constitutional status quo, be that challenging principles of federal power dating from the New Deal, overruling Roe, providing greater protection for property rights, dismantling affirmative action and federal habeas corpus, or some other variation/combination. Harriet Miers is unacceptable because she does not embody any conservative constitutional vision. Edith Jones does, as do a host of other characters. Hence, but entrusting a crucial Supreme Court position to a personal loyalist, Bush betrays the revolution of 1994 to 2004.

For many liberals, the series of elections from 1994 to 2004 merely demonstrate that Americans are badly divided and polarized on the crucial constitutional issues of the day. No one has a mandate to govern from the extreme. Rather elections indicate a lack of consensus. Hence, the appropriate Supreme Court nominee is a moderate conservative, who reflecting that conservatives have enjoyed more success than liberals, will not engage in liberal activism, but reflecting the uncertain state of American politics, will generally maintain the constitutional status quo.

My position is that both the liberal and the conservative position have elements of truth, that the country is clearly moving rightward on a good many issues, but that conservatives have no achieved a 1932-36 style victory. Indeed, they are counting on Democratic spinelessness to achieve in the courts what they cannot win at the polls.

John Roberts had elements that might appeal to all three. He was a Republican loyalist, had attachments to movement conservatives, but was convincing to some (not me) that he was generally happy with the constitutional status quo. Miers's appeal is strictly to those who trust George Bush or believe that the election of 2004 commits Americans to trusting George Bush.

Posted 1:32 PM by Mark Graber [link]