Should Ideology of Judicial Nominees Matter?: Is the Senate's Current Reconsideration of the Confirmation Process Justified?

I. INTRODUCTION Beginning in June of 2001, following the switch of party control in the United States Senate from the Republicans to the Democrats, after Vermont Senator James Jeffords left the Republican party, the Subcommittee on Administrative Oversight and the Courts of the Senate Judiciary Committee, then chaired by Senator Charles Schumer, announced a series of hearings to examine three topics: should "judicial ideology" play a role in the selection of judges; should judicial nominees have the burden of persuading the Senate that they are fit for office; and did the Rehnquist Court's "federalism" jurisprudence create a need for the Senate to take steps to change the selection process? This comment seeks to explore these three questions and concludes that the Democratic leadership of the subcommittee is inappropriately engaged in an effort that endangers the rule of law and the independence of the judiciary. II. IDEOLOGY AND JUDICIAL PHILOSOPHY Should "judicial ideology" play a role in the confirmation process? Is it appropriate for the Senate, in the course of its constitutionally-mandated "advise and consent" role to seek to question nominees about their 'judicial ideology?" To answer these questions, one should first try to understand what is meant by "ideology." The word has a variety of definitions, but one seems to fit our needs here reasonably well: "a systematic body of concepts esp[ecially] about human life or culture."1 It might also be helpful, initially, to draw a distinction between what we might describe as an ideology of substance or results, and an ideology of process. An ideology of results might be an appropriate means of evaluating the elected officials in a government, particularly those in the executive and the legislature, but an ideology of process would be a more sensible means of evaluating the behavior of the judiciary. We speak about such an ideology of process when we discuss what we more commonly refer to as "judicial philosophy," and it is that with which the Senate should concern itself when evaluating nominees. The question of the appropriate judicial philosophy for our country is one of the most crucial concerns for determining the fate of our republic, as was understood from the beginning of the republic. The Framers believed that it was important, from time to time, to return to first principles,2 and one of the most basic is how judges are supposed to conduct themselves. The two foundational principles of the American political system are the sovereignty of the people and the rule of law, and both figure intimately in the question of judicial philosophy. There is really only one judicial philosophy of which the Framers approved, and that philosophy is to be found in The Federalist 78, the famous justification for judicial review written by Alexander Hamilton in 1788.3 A. The Judicial Philosophy Suggested in The Federalist Hamilton had to respond to critics of the proposed federal Constitution who were concerned that it gave too powerful a role to federal judges and that, in particular, federal judges might use their great power to impose their own view of what the law should be on the American people.4 The critics of the Constitution were particularly worried that federal judges might obliterate the authority of the state courts and the state governments and replace the recently achieved independent role of the States as primary domestic lawmakers with an allpowerful central government.5 Hamilton responded to this criticism by emphasizing that it was not the job of judges to make law and that their role under the Constitution was simply to enforce the Constitution and laws as they were written, according to their original understanding.6 By doing so, Hamilton explained, federal judges would be acting as agents of the sovereign people themselves, and would do their part in implementing the rule of law.7 It was true that judges might sometimes be called upon to declare statutes invalid because of the dictates of the Constitution, that is, to declare, in the words we use today, that particular laws were "unconstitutional," but their role in implementing the will of the people as set forth in the Constitution required no less. …