Santa Clara University

Closing Argument

Law, Politics, and the Appointments Process

BY BRADLEY W. JOONDEPH, ASSOCIATE PROFESSOR, SANTA CLARA UNIVERSITY SCHOOL OF LAW

In his opening remarks to the Senate Judiciary Committee during his confirmation hearings, John Roberts compared the role of a judge to that of an umpire. “Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.”

The notion that Supreme Court justices are neutral arbiters of constitutional disputes, objectively applying the law without reference to their personal values—not making the rules but merely applying them—has a strong hold on Americans’ collective understanding of our constitutional democracy. After all, it is the Constitution that should decide whether a certain governmental action is permissible, not the justices themselves. At some level, the rule of law demands that neutral principles must decide legal disputes, not a judge’s own view of what the law should be. Law and politics are distinct realms, and judges should know their place.

Indeed, this law-as-separate-from-politics ideal is foundational to the argument that the process for appointing federal judges has become “too politicized.” For if judges are really like umpires, the debate over a nominee should focus on his objective qualifications—the credentials he has accumulated in the minor leagues, his ability to accurately call balls and strikes—rather than his political ideology.

The problem, of course, is reality. Law and politics are not separate, particularly at the Supreme Court.

To be sure, judging is different from legislating or executing the law. Federal judges face constraints different from those borne by Congress or the President, probably the most significant of which is the law. Judges cannot pursue their own policy goals willy-nilly. In fact, in the overwhelming majority of cases decided by the federal courts, the law likely dictates an outcome that every reasonable judge would reach.

But to say that judges play a role in our system different from members of Congress or the President is not to say that judging is neutral, objective, or apolitical. Judging is intensely political, especially at the Supreme Court, and especially with respect to the most controversial questions. The “objective” sources of constitutional law—the text, history, tradition, and precedent—are simply too indeterminate to dictate objectively correct results. Almost every case to reach the Court could defensibly be decided either way. Thus, a justice’s own policy preferences inevitably influence her votes, even when she sincerely believes she is merely “following the law.” And the more important the legal issue, the more likely a justice’s ideology will predict her vote. Witness Bush v. Gore.

Lawyers may resist these insights, but the evidence accumulated by social scientists is overwhelming. As one political scientist wrote recently, “[n]o serious scholar of the judiciary denies that the decisions of judges, especially at the Supreme Court level, are at least partially influenced by the judges’ ideology.”

And if a nominee’s ideology is critical to how he will vote as a justice, the President and Senators have every incentive to vindicate their policy goals through the appointments process. Why wouldn’t the President select nominees based on his perception of their ideology? Why wouldn’t Senators perform their advise and consent function based on the same considerations? How could we expect elected officials to act otherwise? The idea itself seems incoherent.

This is why calls to “depoliticize” the appointments process are misguided. We simply cannot extricate politics from the process. Nor should we want to. Part of what legitimates the Court’s power in our democracy, at least partly, is that the justices are selected by elected officials. But this electoral accountability is undermined by the randomness with which various elections affect the composition of the Court. Some presidential elections have a huge influence on the selection of justices; others have none at all. It all depends on when justices retire or pass away.

If we need reform, then, it should aim to rationalize the impact of elections. In other words, we should make the process more responsive to politics, not less.

Bradley W. Joondeph, associate professor, Santa Clara University School of Law, was a judicial clerk for Justice Sandra Day O’Connor, United States Supreme Court during October 1999. He was also a judicial clerk for Judge Deanell Reece Tacha, United States Court of Appeals for the Tenth Circuit from 1994 to 1995.