THE BATTLE over the nomination of John Roberts to the Supreme Court is heating up, as interest groups and politicians step up their rhetoric with hearings set to begin Sept. 6. While the idea of heated confirmation battles over Supreme Court nominees now seems utterly ordinary, it should be realized that the fierce partisanship and sharp rhetoric which now characterize these nomination fights represent an unpleasant outgrowth of the Supreme Court's retreat from traditional legal concepts in formulating constitutional law. This trend has enlarged the role of the individual justices on the Court. The process of confirming a Supreme Court nominee has now become a broken process, focusing more on politics than legal competence.
It is instructive to contrast the current process with the prevailing formalistic approach to law of the nineteenth century. Legal formalism theorized that judges "find" law through an objective, impersonal process. The image of judges as detached, apolitical law-givershas been prevalent throughout American law until the mid-twentieth century, such that Stanford law professor Lawrence Friedman has written in his History of American Law, "The modern idea of law as essentially man made, as essentially a tool or instrument, was foreign to the classic common law."
While the ideals of legal formalism have proven almost impossible to achieve, the alternative, as exemplified by the jurisprudence of the modern Supreme Court, is scarcely more appealing. The Supreme Court claims for itself the right to make substantive value judgments that supersede democratic processes, exemplified, of course, by Roe v. Wade. The Court's inconsistent application of legal standards in these fields, moreover, has meant that the power of individual justices has grown. Biographies, like John Jeffries' account of the life of Justice Lewis Powell, seem to confirm that the best predictor of constitutional decisions lies in the political prejudices of the individual justices. It is no wonder that politicians and interest groups take such an avid interest in the personal political views of prospective justices, knowing that these judges will be wielding powers once exercised by the democratic branches of government. It is no coincidence either that the justices, such as the arch-conservative and lecture circuit fixture Antonin Scalia, are increasingly forced to take their opinions to the people and campaign for their view of the Constitution as politicians would.
Outgoing Justice Sandra Day O'Connor, now lionized by liberal groups as the model of a good justice, seems to exemplify these trends. Whether she reached a liberal or a conservative result, O'Connor always stressed policy considerations in justifying her decisions. Her disregard of formal legal concepts is perhaps best demonstrated by the plurality opinion in Planned Parenthood v. Casey, where, in the manner of a political compromise, O'Connor and two other justices chose to reaffirm some portions of Roe while discarding others.
The result of all these changes is that the Roberts nomination has become a political football. The major premise of the interest groups opposing Roberts' nomination is that justices, like politicians, should represent the people. Presidents are constrained in who they choose for a seat as any nominee must not only be competent but represent "mainstream values." Legal competence, in short, is being overtaken by political suitability as a criterion for choosing justices, a trend that threatens the quality and impartiality of the judges, as presidents may focus on the political suitability of potential nominees at the expense of other qualifications.
Conservatives, whose garish and inflammatory rhetoric on the judiciary has become a standard from radio preachers to senators, have been just as culpable in this affair as liberal interest groups such as People for the American Way.
Counterproductively, these liberal groups have coalesced around the issue of insisting on the continuation of Roe v. Wade, a divisive issue which is largely bereft of practical import (five justices are already committed to upholding Roe v. Wade even without O'Connor's vote), distracts Congress from more substantive issues and diminishes its respect in the public eye.
Still, the ultimate blame for this entire process must go to the Supreme Court itself. The gratuitously political nature and inconsistency of many Supreme Court decisions, from Roe v. Wade to Bush v. Gore, have led to a situation where the public, justifiably, feels an entitlement to elect justices as they would any other official.
Noah Peters' column appears Mondays in The Cavalier Daily. He can be reached at npeters@cavalierdaily.com.
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