Ed Whelan offers some smart advice to Republicans on the Senate Judiciary Committee on the selection of Justice Souter’s replacement. The larger point to keep in mind is that legal conservatives need to identify what they reasonably can and want to accomplish. I think it entirely unlikely, in fact impossible, that they will defeat a nominee unless the president makes an egregious error in selecting someone unqualified or ethically challenged. He won’t — he’s smarter than that. So what should they do?
I think this is another opportunity, as all Supreme Court nominations are, for public discussion and education about the role of judges and competing judicial philosophies. Conservatives would be wise to not aim for “gotcha” moments or devise some pie-in-the-sky approach to thwarting the nomination. Instead they should in effect say to the American people: “This is what they stand for; this is what we do.” The “they” are proponents of judicial activism, of judging by the pull on a heartstring, and of disdain for textual interpretation. The “we” are those who follow the example of Chief Justice Roberts’ judicial humility, aim to “get it right,” and recoil at the notion that judges get to impose their subjective views of “fairness” on the rest of us. It is extremely important for voters to understand what all that entails and where it leads.
As to what this entails, it means that judges fancy themselves as do-gooders, out to enact personal notions of fairness without regard to the will of the people as expressed by legislative or Constitutional statutes. How does such a judge come to conclusions once freed from the obligation to interpret text? Why do they think they hold special insight into our nation’s problems? Why isn’t the judge’s sole task to delve into the meaning of the text before the court? And so on. Let the nominee explain. Voters may be shocked to hear that the judge is going to lean back in her chair, consult her conscience and follow her personal values wherever they may lead. (And if that’s the case perhaps the nominee should share those values at length with us so we know what we’re getting.)
And voters should hear where this leads. I suspect that the nominee will follow the “Ginsburg rule” — “no hints, no forecasts and no predictions.” But the nominee may have written opinions, writings, and speeches — or views on past cases which suggest what the nominee’s judicial philosophy portends. (Well, unless Obama is silly enough to select a blank slate like Justice Souter.) And we can, judging from the other similarly-inclined justices, see what we get from relying on value-laden judging — on everything from gay rights to gun control to race relations. The value-laden judges have a set of policy objectives and the public should hear what they are.
None of this will change the result of the confirmation proceeding. But it isn’t supposed to. It is supposed to educate the public about just how extreme and unwieldy is the entire philosophy of judicial activism and how little respect its proponents have for democracy. And if it is done effectively, voters may reconsider whether that’s part of the “change” they wanted.
