Judicial Nominations and the Freedom Movement

Our Constitution’s framers were prescient in many ways, but perhaps most so in their recognition of the importance of an independent judiciary in checking the excesses of the executive and legislative branches of government.  With the breathtaking accretions of powers by the President, Congress, and the unelected federal administrative state—not to mention state and local governments—the central role of the courts in limiting government power and enforcing individual rights has grown more important than ever.  On issues as disparate as federalism, private property rights, and privacy, the federal courts in many instances are the thin black-robed line that protects our constitutional rights against a government determined to eviscerate them.

The framers understood that crucial role.  In The Federalist No. 78, Alexander Hamilton, of all people, argued that the natural tendency of all governments is to expand their power.  In such a system it would be necessary for the courts to hold the other branches “within the limits assigned to their authority.”  In that way, the judiciary would provide an important safeguard for individual rights by serving as one of the “bulwarks of a limited Constitution against legislative encroachments.”  To fulfill that role, he argued, courts must “declare all acts contrary to the manifest tenor of the Constitution void.  Without this, all reservations of particular rights or privileges amount to nothing.”  Indeed, if “judicial activism” is defined as courts striking down laws that exceed constitutional boundaries, the problem with judicial activism today is not that there is too much but far too little.1

Along with the salutary role that courts can play in protecting individual liberty, Hamilton also recognized the destructive role that courts could play if ever they combined their power with executive and legislative power.  While “liberty can have nothing to fear from the judiciary alone,” he observed, it “would have every thing to fear from its union with either of the other departments.”  That concern is far from hypothetical.  During the New Deal, the U.S. Supreme Court was handmaiden to the vast expansion of federal power, interpreting the Commerce Clause to bestow virtually unlimited regulatory powers and largely reading important limitations of government power, such as the Contract Clause, out of the Constitution.  The Warren Court was even worse, because federal courts went beyond striking down laws it considered unconstitutional and exercised both legislative powers (such as Miranda warnings, the Roe v. Wade trimester system, and racial quotas and forced busing) and executive functions (such as running school and prison systems).

Practically speaking, the President’s nomination of judges, and the Senate’s advice and consent as to those nominations, are the last democratic checkpoints before individuals are invested with lifetime tenure and few constraints on how they exercise their authority.  A great deal of academic ink has been spilled over how the President and Senate should exercise their respective powers.  Personally, I believe the President deserves greater deference for district court nominees, whose decisions always are subject to review; less for Court of Appeals nominees, given that their decisions are reviewed only rarely; and none at all for Supreme Court nominees, given the tremendous and enduring power at their disposal.

But those arguments are just that: academic.  As the stakes have grown, so too has the importance of the philosophy of the individuals appointed to federal judgeships.  Hence for better or worse, judicial nominations are highly political.  Indeed, I have argued that judicial nominations are the most important reason to vote for a particular candidate for president.2  This is nothing new: Abraham Lincoln, Franklin Delano Roosevelt, and Richard Nixon all tried with varying success to pack their respective Supreme Courts. 

The science of predicting judicial behavior has also improved considerably:  there has not been a serious “mistake” whereby a president nominated a Supreme Court justice who greatly disappointed him since George Bush’s nomination of the now-retired David Souter more than two decades ago.  Moreover, presidents are getting a clue and nominating younger judges, who enjoy (at least until the implementation of Obamacare) ever-growing longevity.  Judicial nominations typically matter most to philosophically motivated activists, and presidents risk much if they disappoint them.

The upshot: not only can presidents generally be counted on to appoint judges who appeal to their respective philosophical bases, but those judges will be around for a very long time—indeed, far longer than the presidents who appoint them.  A Supreme Court nominee in his or her mid-40s who joins the Supreme Court today can be expected to remain on the Court past the midway point of the 21st Century.  That, my friends, is a serious presidential legacy.

All of which argues for a very engaged role for the freedom movement in judicial nominations and confirmations.  Fortunately, we have a fairly well-developed infrastructure in place to cultivate, educate, and promote good judicial nominees, at least at the federal level.  No organization has done more to create that infrastructure than the Federalist Society.  An ecumenical group that bridges the libertarian/conservative divide, the Federalist Society has elevated debate in the nation’s law schools and has helped credential bright young law students as judicial clerks and academics.  During recent Republican administrations, the Federalist Society has developed a pipeline of highly qualified, philosophically oriented judicial nominees.

Where the freedom movement lags is in waging campaigns over judicial nominations.  The philosophical balance on the U.S. Supreme Court has not shifted significantly since the nomination of Justice Clarence Thomas to replace Thurgood Marshall (though replacing Justice Sandra Day O’Connor with the more conservative Samuel Alito fortified the slender conservative majority).  But if a Democratic president succeeds Barack Obama, or if an unexpected vacancy arises on the conservative side, the Court’s majority could shift decisively—and for a generation or more.  The freedom movement must resolve that such a shift will not happen—and that if we have opportunities to improve the Court’s balance, we will seize them.

The freedom movement only slowly is beginning to appreciate the vast untapped potential of state courts and constitutions.  In their relationship with the federal constitution, state constitutions have a favorable one-way ratchet: their protections of individual rights may be interpreted more broadly than the federal constitution, but not more narrowly.  State constitutions provide more constraints on government power and protections of individual rights than the U.S. Constitution.  Standing to challenge government action is far more broadly conferred in state rather than federal courts.  And of course entire categories of important matters—from tort law to education, family law, and criminal law—are largely consigned to state courts.  For all those reasons, the freedom movement should engage substantially in state judicial nominations, especially in states whose judges are elected.

In terms of legal scholarship, conservatives and libertarians have long punched above their weight class.  I would like to see more scholarship aimed at judicially created obstacles to robust judicial review of government actions, from artificial constraints on standing, to the political question doctrine, to rational basis review.  Here, the Cato Institute has been in the vanguard, and I hope other pro-freedom organizations will follow suit.  Above all, shrill condemnations of judicial activism from lawyers-turned-radio-talk-show-hosts serve us not at all when we need courts to fulfill their constitutional role as guardians of the Constitution more than ever.

I agree with John Lott that the best (indeed only) way to reduce the importance of judicial nominations is to reduce the stakes by reducing the power of government.  In fact that is an apt prescription for much of what ails our nation.  But until that day comes, we must join the fray, big-time.  For better or worse, a robust judiciary is the best antidote to our worst fears.


1  In David’s Hammer: The Case for an Activist Judiciary (Cato 2007), I point out that the number of U.S. Supreme Court decisions striking down federal laws has not even remotely kept pace with the explosive growth of federal laws and regulations.

2  Two-Fer: Electing a President and a Supreme Court (Hoover Institution 2012).

Also from this issue

Lead Essay

  • John R. Lott, Jr. lays out the evidence that the judicial confirmation process is broken. Nominations are taking longer on average. They’re growing nastier. And Lott’s research shows that the most objectively qualified nominees are the ones who have it worst. The reason why is easily understood: Other things being equal, no one, whether a Republican or Democrat, wants to see the smartest, most persuasive of one’s ideological opponents on the bench. Lott’s remedy is a familiar one to libertarians: Reduce the size and scope of judicial activity in all of our lives. Lower the stakes, and the conflict will ease. This, though, can only be done by reducing the scope of the federal government itself.

Response Essays

  • Michael Teter agrees that the judicial confirmations process is broken, along with much else about the legislative process. The whole thing, he argues, is a problem. But to him, the root of the problem isn’t big government: Teter argues that the rules and norms of the Senate delay action in a wide variety of areas, and not the growth of government. He describes the recent end of nomination filibusters as a good step toward fixing the problem, and he recommends further changes that will speed up the appointment of judges.

  • Clint Bolick agrees that the growth of government has made the judiciary more influential. But he recommends that libertarians take advantage of the opportunity it presents: Advocates of economic and personal liberty have lately enjoyed some measure of success in the courts, thanks in part to organizations like the Federalist Society, which has done much to promote qualified judicial candidates. We owe it to ourselves to capitalize on the importance of the modern judiciary.

  • John O. McGinnis argues that the real problem with our courts lies in their lower echelons: The Supreme Court consists of manifestly qualified and able judges, all of whom attended our top two law schools, among their other impressive qualifications. But at the lower end, the public isn’t paying attention, and nominees who are otherwise qualified can be sunk for political reasons. McGinnis applauds the elimination of the filibuster for nominations, but he suggests that a cultural change may also be in order: the return to originalism in judging and legal scholarship. Although an originalist judge may have some latitude for interpretation, that latitude is greatly reduced when compared to a living constitutionalist judge. This, McGinnis suggests, will reduce politicking on the courts.