A little late to the party, here is my effort to clarify some of the issues that arise repeatedly in battles over Supreme Court nominations. As I write, Senators are in the process of voting on President Biden’s selection of Kitanji Brown Jackson to fill the seat being vacated by the retirement of Justice Stephen Breyer.
In the potted conservative history of the Supreme Court, the rot dates back to 1954, when the Court’s unanimous ruling in Brown v. Board of Education marked the beginning of the end of racial segregation. Billboards along highways in the South shouted, “IMPEACH EARL WARREN.” Warren’s term as Chief Justice was a crushing disappointment to conservatives, the first of many. From their perspective, conservatives kept winning elections, including the presidency, and yet the Court inexorably kept moving to the left, “creating” or discovering new rights with drunken abandon. This period is known as “the Warren Court,” although most of the alleged judicial excesses were perpetrated under his successor, Warren Burger.
President Richard Nixon got to appoint four justices and even so, the liberal tide continued to roll, until it crested in 1973 with Roe v Wade, the abortion decision. We will find out this year whether the Court, with six self-identified conservatives and three putative liberals, will allow Roe to stand. Many of the arguments being used by both sides in 2022 were already familiar in 1990 when the nominee was David Souter.
Originally published in The New Republic, August 13, 1990
President Bush says he has no idea where David Souter stands on abortion, affirmative action, and the other hot Constitutional issues. Seeking a formula that will reassure liberals without alarming conservatives and vice versa, he said there was no “litmus test,” but that his Supreme Court nominee would “interpret the Constitution and not legislate.” And thus begins the summer Supreme Court Hypocrisy Festival. All the players know their parts but the audience may need help understanding the script. Herewith a handy guide to some of the major buzzwords.
Advice and consent. A “strict construction” of these words would seem to entitle the Senate to a major say in choosing Supreme Court justices. The “original intent” of the Constitution's authors apparently was to compromise between different proposals giving exclusive authority to the Senate or to the president. Yet conservatives generally interpret this phrase to mean that the Senate must approve anyone the president nominates unless he actually can't tie his shoes on the third attempt.
A Supreme Court justice is not a member of the president's team like a cabinet officer, and the Senate owes the President’s choice no special deference. This is not a recipe for paralysis, it’s a recipe for compromise. Clearly, strict constructionist Bush made no serious attempt to seek the Senate's “advice” before choosing David Souter. That should make its “consent” harder to come by.
Balance. What liberals now claim they want among the nine justices. History does not record any liberal calling for “balance” when the court was tilted to the left and liberal presidents were doing the appointing.
Conservative. This can mean two things. It can mean a principled belief that unelected judges shouldn't thwart democracy by sticking their own values into the Constitution. Or it can mean, Here is a golden opportunity to stick conservative political values into the Constitution. Liberals did it for years—why shouldn’t we? (See “judicial restraint,” below. ) Liberals like to argue that “conservative” also includes reluctance to overturn established precedents. But conservatives are not stupid enough to fall for that.
Election Returns. Commentators seem unable to resist Mr. Dooley’s hackneyed line about how the Supreme Court follows the election returns, even though the entire controversy over the Court centers on the occasions when the Court doesn’t follow the election returns. Conservatives claim to resent this. However, when liberals choose to mount a campaign against the nominee, conservatives complain about the “politization”of the judiciary. They’ve got it backward. The Supreme Court is supposed to be above politics and protecting our Constitutional rights against the whims of the majority. Choosing justices by contrast is where politics is supposed to come into it.
Fifth Amendment. A perfect example, say conservatives, of how liberals have run wild, allowing criminals to get off on technicalities. Deplorable, unless the criminal happens to be Oliver North. The North prosecution just got trashed on an exquisite Fifth Amendment technicality by a conservative-tilted federal appeals court panel.
Ideology. Very bad for a judge to have, everyone agrees. (But see Philosophy, below.) In his announcement of choosing Souter, Bush reaffirmed the traditional pretense that he sought only “excellence” and that he would never dream of finding out whether a potential justice agrees with him or not on issues he supposedly thinks are vitally important. In reality, judicial nominations have become much more ideological and partisan. The chance of a Republican president choosing another Brennan, as Eisenhower did, is nil. Fair enough. But then but this gives the Senate the right to pass judgment on the same basis.
Judicial activism and judicial restraint. Conservatives believe that activism is bad and restraint is good. Except that the 1988 Republican platform calls for judges who believe that “the Fourteenth Amendment's protections apply to unborn children.” Which means judges who would hold abortion itself to be unconstitutional, no matter what the legislature votes. Oh yes, and conservatives think a special prosecutor law is unconstitutional, and so is affirmative action, and maybe NYC rent control, and the list goes on.
Litmus tests. Sometimes called “single-issue litmus tests.” Bad, very bad. Especially the other side’s. While pro-choice senators were warning President Bush not to apply any pro-life litmus test to his nominee, pro-choice groups were sending out mass mailings promising to oppose anyone who would vote to reverse Roe v Wade.
Philosophy. A good thing to have, as long as it doesn't make you an “ideologue.” There is a germ of a legitimate distinction here, between having a theory of the role of the judiciary under the Constitution and merely being determined to impose your political will. But usually a philosophy is what I have and an ideology is what you have.
Original intent. What conservatives say they want judges to follow. Makes it sound simple, which it isn't. What was the original intent of the framers about how to interpret their original intent?
Pre-judge. A very, very bad thing to do, it seems. In the Bork episode, Republicans savaged Democrats for having “pre-judged” his suitability for the Court before he’d even had a chance to present his side of the story in a hearing (as if most Republicans hadn’t also made up their minds the other way). Preferable: an “open mind.”
Then Democrats savaged Bork for having pre-judged Constitutional issues that might come before him on the Court. The Supreme Court is not a trial court, in which the factual evidence must be presented afresh. The whole point of having a philosophy—good, remember?—is that it leads to answers on specific issues. Abortion, for example, has been a predominant Constitutional issue for almost two decades. Anyone who hasn't started thinking through the issue by now shouldn't be eligible to graduate law school, let alone sit on Supreme Court. Which leads directly to…
Questions on specific issues. Should Supreme Court nominees have to tell the Senate where they stand and how they got there? Of course they should. Except for Bush’s understandable wish to have it both ways, why should this be a guessing game? That would indeed, as Robert Bork has charged, put a premium on candidates with no record of having thought about the issues they will have to deal with on the Court. Nominees shouldn't be expected to answer an endless string of hypothetical questions. But on the great constitution issues--does the Bill of Rights apply to the states?--and in the big 5 to 4 cases of recent years --abortion, reverse discrimination, flag burning--there's no reason the Senate shouldn't expect an answer and an explanation of how it was derived.
Pro-choice. “We must stop any nominee who is not pro-choice” says abortion rights leader Kate Michelman. But you can be pro-choice and still believe that abortion is not in the Constitution. Indeed, that is what I believe. Reaction to last year’s Webster decision has demonstrated that not only can the political process protect abortion rights, but this can be a great revival issue for liberals, just as Roe made abortion a great revival issue for conservatives.
Reverse discrimination. A no-no, needless to say. Conservatives are all for judicial activism when it means judges knocking down affirmative action plans and yet Bush almost bragged of his intent to take ethnic criteria into account in appointing future Supreme Court justices. Ronald Reagan promised in the 1980 campaign to name the first woman to the to the court, and he kept that promise. Go figure.
Strict constructionism. The third component of the great conservative judicial Trinity, along with “judicial restraint” and “original intent.” These values are not always compatible. For example, the First Amendment says Congress says quote Congress shall make no law... abridging the freedom of speech.” A strict construction of those words would lead to a broad an “activist” approach to interpreting the Constitution. But few self-proclaimed strict constructionist are First Amendment absolutists. Where does Judge Souter stand? The only way to find out is to ask.
Welcome back, Mike! I've been reading your articles since I subscribed to TNR in college in 1985 (those were the days!), but I'm sure I've forgotten some important ones. Looking forward to more from the archives.