Some Jewish leaders are urging the community to “go to the mattresses” in full-scale warfare against President Bush’s judicial nominees. This effort to trigger a wholesale attack on the judicial nomination process is unfortunate. It won’t help the Jewish community, and it is bad public policy as well.
In recent years, Jewish community defense organizations have looked to steer clear of the judicial nomination process. Some Jewish groups have veered from this consensus, in particular the National Council of Jewish Women, who, like the Democratic Party, use abortion as its single-issue litmus test. Others, such as the Religious Action Center of Reform Judaism, have thrown down the gauntlet, fearing “an effort to rewrite the federal bench.” But most Jewish groups have understood that further politicization of the judicial nominations process is unwise.
One point should be made clear: No one is objecting to Jewish defense organizations reviewing candidates on his or her own merits. However, the guidelines must be clear. The president has the right to nominate a judge of his choosing. And the nominees deserve an up or down vote. Liberals should not assume that they have a veto power over presidential choices when their opposition is thinly disguised ideological objection.
Some liberals have urged recourse to such trench warfare after President Bush in mid-February resubmitted for Senate confirmation 12 nominees to the federal Court of Appeals. The nominations had been blocked by Senate Democrats during his first term.
If liberals resort to the filibuster to prevent a vote on these presidential nominees, many Republican senators are prepared to consider the so-called “nuclear option,” which would effectively change the Senate rules to nullify the power of the filibuster. The Senate’s constitutional role in the judicial confirmation process is poorly served by the wholesale use of the filibuster to stall votes on judicial nominees. And if the “nuclear option” proves the only way to ensure an up or down vote on the president’s nominees, it will almost certainly throw the remainder of the legislative session into institutional paralysis.
Furthermore, the president’s guidelines are themselves ones that the Jewish community ought to applaud, not deprecate. As he stated in his State of the Union message, he will nominate judges who “faithfully interpret the law, not legislate from the bench.” The president’s insistence on judges who interpret the law rather than assert subjective policy preferences is underscored by his refusal (unlike John Kerry) to require nominees to pass any single-issue litmus tests demanded by the party faithful.
At the same time, faithfulness implies a recognition of the importance of stare decisis, which maintains wherever possible the stability of legal rules. This concern for stability has in past years ensured that conservative judges hold back from overruling case law they may fault.
It is well worth remembering that when Oliver Wendell Holmes retired in January 1932, President Hoover consulted with the chairman of the Senate Judiciary Committee, William Borah of Idaho. Hoover was focused on the political benefits of nominating a Western Republican and gave Borah five possible nominees. Benjamin Cardozo was placed fifth, reflecting Hoover’s political priorities. Borah looked at the list and returned it to Hoover commenting, “Your list is all right, but you handed it to me upside down.” He did not let quality fall victim to a political litmus test, as is the current case among Democrats.
In contrast, today’s liberals have taken a different view. In a 1991 op-ed, Charles Schumer, a member of the Senate Judiciary Committee, maintained that the senators should feel free to reject nominees on the basis of ideology, their qualifications and competence not withstanding.
Most revealing, however, the desire to start up the judicial wars reflects an exaggerated view of the role of judge in American society. The sole fact is that judicial activism is a philosophy fostered by an intellectual elite who believes that the rights of the people stand or fall on the judiciary. As critical (that means “left-wing”) legal theorist Mark Tushnet has trenchantly observed, “It is politics that shapes the civic identity of the American people, not judges.” The Constitution belongs to all of us. Protecting and enforcing our rights is a responsibility of all branches of government, both state and federal. The lessons of history are painfully clear, “minorities” (however defined) put their trust in judges at their peril.
This leaves me with a prudential point for American Jewish defense organizations. The constitutional ideals which some Jewish activists want to fight for can be only truly advanced by the political process. As Paul Starr, co-editor of The American Prospect, has acutely suggested, “For decades, many liberals could ignore the elementary demand of politics — winning elections — because they could go to court to achieve … their goals.” By relying on the courts to save them, liberals not only show contempt for the voters, but also doom themselves to ideological irrelevance. If that is the goal of the American left, the Jewish defense agencies ought not join their lemming-like rush over the cliff. n
Marshall J. Breger is a professor of law at Catholic University of America. He served as a liaison to the Jewish community in the Reagan administration and the solicitor of labor in the first Bush administration.
TWO VIEWS:
Bush’s court nominations: Will they be a Jewish battleground?