Justice John Paul Stevens will be retiring from the Supreme Court this summer and President Obama will be charged with appointing a second Supreme Court justice. While Obama screens candidates and waits for better political timing to name a nominee, the parties are gearing up to paint whoever is nominated in terms favorable to their politics.
Without knowing who the nominee is, I'm sure Democrats will hail Obama's nominee as an independent, fair-minded, moderate liberal that has a stellar personal story and sterling list of achievements. Republicans will call the nominee radical, activist, pro-choice and unfit for service.
The way the parties label justices is a big problem for keeping the nomination process honest. The most atrocious and misleading label of all is "judicial activism." Modern day Supreme Court nominees live or die by this code word. Conservative presidential candidates proudly proclaim in any speech they can that they won't appoint "activist" judges, and will instead appoint people to the Supreme Court that will follow the "strict letter of the Constitution."
There are a hundred different problems with this code word, the biggest of which is how it ends meaningful discussion between the parties. As Geoffrey Stone pointed out in his April 13 New York Times piece, "Our Fill-in-the-Blank Constitution," conservative principles of constitutional interpretation dictate how our society debates potential Supreme Court nominees. America responds best to rhetoric that construes the Constitution as an immutable, not-up-for-debate document whose meanings and reaches are obvious.
Because intellectual powerhouses like Justice Antonin Scalia truly believe that the Constitution has just one meaning—that of the Founding Fathers—and because it is politically toxic to admit publicly that most amendments are still up for interpretation, our debate over judicial appointments has become stunted.
While Americans want to hear that constitutional thought is a singular entity, they lose sight of the fact that judicial activism is just a dirty word for a liberal judicial philosophy, something that many Supreme Court justices, including Stevens, have had. The label implies that liberal justices always reach beyond a case's Constitutional purview, bucking precedent and abusing the role of the judge along the way.
There's nothing inherently liberal about judicial activism though. The Court is supposed to move in small steps, deferring to precedent when possible and establishing new precedent in small, narrow ways when necessary. Judicial philosophies of all stripes can abuse the Supreme Court to adjust the law to their liking. Citizens United v. Federal Election Commission is a case that recently won the Supreme Court's conservative majority and significantly loosened campaign finance reform laws. The majority opinion definitely went far beyond the confines of the case in question and bucked at best 20 years and at worst 100 years of precedent and law.
Rather than discovering if a nominee will be an "activist," we should ask them what they would do if they came across legal precedent with which they disagreed. If Obama's nominee this summer disagreed with Citizens United, how much of it would they overturn if they had the opportunity? When should a justice defer to precedent? When is it allowable to overturn the mistakes of former Courts and when is it not?
Better yet, how does Obama's nominee's vote when no precedent governs a case? What guides a justice's intuition when no law exists in the area in question?
There are, to say the least, no easy answers to these questions. But a nominee that could speak intelligently about these issues by addressing their complexity and nuance would be the kind of person worth putting on the Supreme Court. And if we aren't asking our nominees these questions, we should at least be asking them of ourselves.
The nomination process, as it currently occurs, is a sham of what could be a very useful and engaging process for our country. There is one upside though. Since appointments to the Supreme Court have become increasingly partisan in the last two decades (remember that Scalia was approved in the Senate 98-0 back in 1986), a small group of senators on both sides of the aisle are willing to vote for nominees across party lines.
They reason that a president should be able to appoint the justices they want, so long as the justices are qualified and not too extreme. With the hope that this bipartisan group continues in the years to come, Obama should be able to appoint a qualified liberal this summer with the help of some Republicans, just as Democrats helped Bush appoint John Roberts and Samuel Alito.
Statesmanship aside, our senators and political parties do a poor job of leading the country in a fair and rigorous debate over the role a judge should play. Consider last summer's nomination hearing for Sonia Sotomayor. Her hearing sounded hardly any different from Roberts or Alito's hearings during Bush's presidency. Sotomayor, like the nominees before her, gave not a single substantive response about an area of the law and how she viewed it. She spoke broadly of "fidelity to the law" and proved her legal credentials. All nominees of the century have spoken of absolute objectivity that deferred to precedent, pretending like the Supreme Court was just a lower court whose opinions ultimately had no bearing on the law of the land.
Unfortunately, there's no easy way to fix this. No president in their right mind would encourage a nominee to speak candidly and risk losing a nomination battle simply for the sake of a more open debate. Senators, specifically those sitting on the judiciary committee, that want to make the nomination hearings more useful will find few friends and few interest groups that are willing to pressure a nominee to risk their appointment by being too honest. And the public isn't going to cry out for a more honest discussion of nominees since the public is often swayed by the labels special interests and the media put on a nominee before any public hearing ever takes place.
But Republicans and Democrats are equally invested in discovering the political views of any appointment. If our Supreme Court nominees are going to speak even a little bit more honestly to how they view the Constitution, a lot will have to change.
The press will need to move beyond a single quote or a 30-second sound bite. Senators will have to ask fair questions that work towards explaining a judicial philosophy rather than trapping a nominee on a single issue. And the public will need to work at focusing on the long-term implications of someone's judicial philosophy so that senators and the press can't feed the public's addiction for short-sightedness.
I don't see how any of this could happen with the constant whirring of Washington D.C.'s current political machine, a machine that cares more about presentation and vague accusation than substance and rigorous discussion. But I expect my government to do more than put on a circus that appeases no one. If we don't start talking more candidly about what our nominees think, why do we even bother having a nomination process?