Tuesday, January 06, 2004

Capitalism & Law: Confirming First Principles

In an interview with Howard Bashman, Tenth Circuit Chief Judge Deanell Reece Tacha discusses her concerns about the decaying judicial confirmation process:
The tenor of that process concerns me for a very different reason than the effect that it has on the judge. I worry about how it affects the public. There is ample evidence that the public has very little understanding of the court system, the judicial process generally, and even of the way that we decide cases. When candidates for the judiciary are so publicly questioned about their personal views on various controversial issues of our day, I feel that the public is increasingly convinced that judges base their decisions on their personal views rather than case law, statutes, and relevant facts. In my view, the confirmation process is an excellent example of one of the places where the public could be educated appropriately about the role of an independent judiciary, the true meaning of a government of laws and not of people, and some of the basic tenets upon which this nation was founded. Regrettably, when the public is only exposed to such rancorous questioning about personal viewpoints, it reinforces the cynicism about whether the judicial process is fair for all people. I fully recognize and applaud the constitutional role that the Senate has in the confirmation process. I only wish that all three branches of government would spend some time taking the high ground of educating the public about some of the basic first principles upon which this nation was founded. Regrettably, I think the confirmation process as it stands today is counterproductive in that respect.
This is a stinging rebuke of Sen. Chuck Schumer and his ideological lynch mob, although Judge Tacha does not identify the Democrats expressly. When Schumer talks about opposing nominees not in the "mainstream," he is rejecting the "first principles upon which this nation was founded." Indeed, America was not founded by the mainstream, but by revolutionaries who tossed aside centuries of monarchy to create the world's first modern republic.

But more to Judge Tacha's point, the confirmation process has now become a battleground for a handful of interest groups, rather than a place to explain to the public how the courts work. And for all of the preening and posturing, there is virtually no discussion about genuine "ideology". The White House shares much of the blame for this with the Senate. Traditionally the White House—regardless of party—muzzles judicial candidates prior to their appearance before the Senate Judiciary Committee. This neuters potential judges in the face of organized interest group opposition. It also forces judges, when appearing before the committee, to act is if they have no ideology or deeply-held beliefs. Remember, the White House wants judges confirmed. They don't want to see a grand explication of ideology a la the courtroom scene in The Fountainhead.

Janice Rogers Brown, a nominee to the D.C. Circuit, is the most tragic recent example of these policies. In reviewing Justice Brown's opinions with the California Supreme Court and her outside writings, she reveals herself to be a true champion of property rights and other individual rights principles that most conservative jurists wouldn't touch with a ten-foot pole. This puts her outside Chuck Schumer's judicial mainstream, which long ago adopted "group rights" as their organizing principle. Yet when challenged before the Judiciary Committee—a group of mediocre lawyers who couldn't hold their own against an unshackled Janice Brown—the White House largely fell back on its political platitudes without mounting a serious ideological attack.

This of course reflects the White House's lack of commitment to first principles. As these confirmation battles continue to mount, I have started to reluctantly conclude that the White House values their embattled nominees as political weapons rather than ideological clashes. In other words, President Bush would rather have a distraught nominee like Janice Brown—an African-American woman—to parade around come election time than he would a Circuit Judge Janice Rogers Brown. I wonder if the senior White House staff actually bothered to look at Justice Brown's principles, as I did, or if they just saw a black woman they could parade around for the cameras.

No comments: