Judicial Nominee "Litmus Tests" Reflect Constitutional Corruption, Pilon Claims

October 21, 2002
Roger Pilon
Roger Pilon said it is harder for a Bush judicial candidate to get a hearing than it was for a Clinton candidate to get a hearing.

The judicial nomination process has become an arena for political "litmus tests" because the judiciary branch is setting national policy more now than ever before, and in a way that violates the Constitution, according to Roger Pilon, vice president for legal affairs at the Cato Institute and director of the Center for Constitutional Studies. Sponsored by the Federalist Society, Pilon presented his paper, "How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees" at the Law School Oct. 17.

"I submit that it's constitutional corruption that has led to this," Pilon said. "As government has grown … more and more comes under political determination."

Inspired by the 2000 presidential election, Senate democrats Patrick Leahy (VT) and Chuck Schumer (NY) in particular have been explicit in leading the charge requiring judicial nominees to conform to certain values, Pilon said. He compared the current 107th Congress with the 105th Congress (during the Clinton administration), when the party in the White House was the opposite of the party controlling the Senate. Ninety percent of Clinton's nominees had a hearing and only 62 percent of Bush's candidates have had hearings in the same time period, Pilon said. A vote was made on 83 percent of Clinton's nominees but only on 53 percent of Bush's picks.

"These are stark reminders of how different it is today," Pilon said. He argued that for about 150 years after the Constitution was written, the government followed a strict constitutional interpretation, but in the 1930s, "the idea was better living through bigger government."

In 1937 the New Deal Court "eviscerated" the doctrine of enumerated powers — shown in the 10th Amendment, which declares that powers not delegated to the three branches by the Constitution are reserved to the states or the people—by reinterpreting the General Welfare Clause and the Commerce Clause. In Helvering v. Davis in 1937, the Court allowed for more congressional power in spending for the "general welfare." The 1937 decision in NLRB v. Jones & Laughlin Steel Corp. also expanded the Commerce Clause, which originally allowed government to regulate commerce among the states, to allowing the regulation of anything that affected commerce, Pilon added.

Since then, "when activists failed to get what they want in the legislative branch, they would get it through the courts."

Pilon said both conservatives and liberals have the wrong idea about the Constitution. He said the classical — and correct — concept is that government is authorized to engage in activities only if the people give them authorization to do so. The liberal conception follows the abandonment of enumerated powers. The conservatives, thinking they lost during the New Deal era, bought the liberal argument to some extent, but are appalled by judicial activism. Conservatives believe "only if a right is fairly explicit in the Constitution should it be protected," a belief Pilon said the 9th Amendment ("The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people") disputes.

Pilon said the danger of politicizing the judicial nominating process lies in the ripple-down effect through the courts. If the legislators can decide everything, including what judges are worthy, then you'll want to know whether the judge is "on 'your' side."

"Until we can turn to [limited construction], I don't know that we'll have a solution" to the problems now facing the nomination process, Pilon said.

Law professor Michael Klarman said political divisions have been injected into the judicial nomination process throughout American history.

Professor Michael Klarman, delivering a response to the presentation, disputed several of Pilon's assumptions. Klarman asked why, if the politicization of the nomination process is new, did 19th-century Congresses reject a quarter of all judicial candidates, "often on quite open political grounds?"

Klarman said Pilon seemed to believe there were clear answers to legal problems in the Constitution. "In my experience constitutional law is never like that," he said.

Klarman said the Marshall Court made the same kind of controversial decisions that the Rehnquist Court does today, but on different issues.

"Reasonable people disagree, often along political lines," Klarman said. "You can't just say the framers intended this and we ought to do it."

He said we should resist calling every decision we disagree with political. He noted that the justices who decided Brown at the time did not believe they were making a legal decision, but a political one, albeit one we view as obviously the right legal decision today.

Even Marshall and Madison were not originalists, Klarman alleged. "Madison clearly embraced the idea that the Constitution should change over time," he said. "They had the most rudimentary conception of judicial review." Pilon's idea that the framers were libertarians is "not supported by the history" since they lived in an era that had many laws governing commerce and the free market was still evolving.

Furthermore, Klarman said, it is impossible to separate judges' decisions and their views.

"Of course it matters what the judge's ideology is," he said. "What we ought to aspire to is that this be done openly and above the board."

A few senators think talking about ideology during the nomination process is illegitimate, he said. Instead they may resort to looking for a nominee's ethical lapse or character flaw as an excuse to dismiss a judge as unworthy.

"I think we ought to have an open debate about whether someone's too liberal or too conservative," he said. He said the Senate should compromise on candidates to reflect the mainstream public. "I don't see any reason why the Senate should acquiesce" to the administration, he said.

Pilon disputed Klarman's remarks, noting that if the courts don't follow the law, then "everything is politics and nothing is law." Pilon agreed that there should be an open debate on judicial candidates' ideology, but "it's going to be a futile debate." He questioned requiring appointees to adhere to the mainstream public's views.

"Either a judge stands for something, or a judge stands for nothing," Pilon said.

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