Supreme Court justices - and the small matter of ideology
THE reaction to President Reagan's nomination of Robert H. Bork to the Supreme Court of the United States throws into sharp relief two paramount facts about the modern court: first, that the nomination and confirmation process for high-court justices is intensely ideological; and second, that many people at both ends of the political spectrum look to the Supreme Court for ``results oriented'' jurisprudence. Both developments are frequently crit-icized. The consternation over applying ideological and political litmus tests to Supreme Court nominees is overwrought whereas the disquiet over results-oriented jurisprudence is fully justified.
It is said by backers of Judge Bork - as it has been said over the years in support of other controversial nominations - that every president has a constitutional right to appoint justices with whose judicial views and temperament the chief executive is comfortable, provided that the nominees are otherwise qualified to sit on the nation's highest bench.
Supporters of Mr. Bork go even further. They insist that Mr. Reagan's judicial philosophy was an issue in the 1984 election and that his landslide therefore constituted a popular mandate to appoint judges who share that philosophy.
But this political argument cuts both ways. The Constitution vests two political entities - the president and, in its advice-and-consent role, the Senate - with equal authority in filling Supreme Court vacancies. And the same electorate that returned Ronald Reagan to the White House in 1984 stripped him of his Senate majority two years later. Such political ambivalence hardly translates into a mandate for Reagan on judicial appointments.
Moreover, the Constitution is silent on the criteria the Senate is to apply in consenting to presidential nominations. With regard to executive-branch appointments, a strong case can be made that a president should be allowed to surround himself with loyal aides who will carry out his orders, unless a nominee is manifestly lacking in character or competence. This argument is less compelling as to judicial appointments, however.
Supreme Court justices, like other federal judges, receive lifetime appointments. What's more, justices deal with matters that are not the special prerogative of the executive branch.
In filling court vacancies, presidents and the Senate collaborate in peopling a separate and co-equal branch of government; neither is preeminent in performing this task. Thus, presidents and senators alike may rightfully judge the judges according to their own lights. Nothing in the constitutional arrangement obligates the Senate to defer to presidential wishes on this score.
The only test the participants in the process need apply to a judicial nomination is: Will this nominee's performance on the bench be in the best interests of the United States and its system of justice? And that test entails political and ideological determinations as much as more objective findings regarding a nominee's character, experience, and skill.
The political and ideological issues that are relevant to this process, however, have to do with a nominee's views on the judiciary's role in our system of government and his guiding principles for constitutional interpretation. Sadly, the tests being applied to Supreme Court nominees more and more have to do with their positions on specific policy matters.
Bork's foes are not even bothering to pretend that their opposition to his confirmation is on other than policy grounds; they are warning that he will ``turn back the clock'' on civil rights, abortion, and other social issues. (Ironically, many of these same critics have denounced the Reagan administration over reports that it screens judicial candidates using ideological litmus tests.)
But some of Bork's supporters are playing the same game. They want him on the bench precisely on the assumption that his decisions will further their own results agenda. (In fact, Bork's record suggests that both sides might be mistaken in their predictions.)
This emphasis on results-oriented jurisprudence is troubling indeed. Because it presupposes that there is a ``right'' outcome for difficult cases - a predetermined result unanchored in legal precedents and the peculiar facts of a case - results-oriented jurisprudence is antithetical to the ideal of an independent judiciary whose members have a duty to make thoughtful, principled decisions divorced from their personal predilections.
It must be remembered that the Supreme Court - a body of nine unelected people possessed of the power to strike down legislation adopted by the people's representatives - is a fundamentally undemocratic institution. It has a vital role in the American system of government. But that role should be limited to the judicial function. To the extent that the court's power is enhanced at the expense of the other branches, to that extent American democracy is weakened. And that is the effect of filling the Supreme Court with results-oriented jurists, thereby empowering the court to act as an unelected legislature.
Presidents should resist nominating results-oriented jurists for the Supreme Court, and senators should reject such nominees - not just results-oriented nominees from the other party, but all such nominees. (After all, a Supreme Court-cum-legislature has more potential to encroach on Congress's turf than on that of the White House.)
With that caveat, the confirmation process for Supreme Court justices should include a freewheeling debate on judicial philosophy - or, if you will, ideology - as well as on judicial competence.
James H. Andrews is an editor with the Monitor's National News staff in Boston.