How to Judge Future Judges

I begin with two quotations from members of the Supreme Court itself. The first was written by Felix Frankfurter some seventy years ago: “[M]embers of the court are frequently admonished by their associates not to read their economic and social views into the neutral language of the constitution. But the process of constitutional interpretation compels the translation of policy into judgment, and the controlling conceptions of the justices are their ‘idealized political pictures’ of the existing social order.” Stephen Breyer much more recently puts the matter slightly differently, though he arrives at the same basic conclusion. After first stating that “[p]olitics in our decision-making process does not exist,” he distinguished what might be termed “low” from “high” politics: “By politics, I mean. . .will it help certain individuals be elected?” He quickly went on to say that “[p]ersonal ideology or philosophy is a different matter. . . . Judges have had different life experiences and different kinds of training, and they come from different backgrounds.” Most important for our present purposes is Justice Breyer’s forthright comment that “[j]udges appointed by different presidents of different political parties may have different views about the interpretation of the law and its relation to the world.”

Justices Frankfurter and Breyer raise the central issue that senators must face in passing on presidential nominations to the judiciary. Judges with different ideologies will shape the Constitution in radically different directions, with effects that are likely to be felt for generations to come. Frankfurter himself, for example, was one of several of Franklin D. Roosevelt’s appointees who together rejected the constitutional learning of seventy years and established a very different framework of congressional regulatory power and federal-state relations than that which existed prior to their service on the Court. And it is worth noting first, that this framework survived, without serious challenge, for at least a half-century and second, that it is now under serious challenge. Significant portions of it have been questioned, if not overturned, by the Court’s new majority, appointed by Ronald Reagan and George H. W. Bush.

When considering nominees for the bench, senators must obviously first make sure that they meet certain baselines of professional competence. But this is almost never a serious hurdle, and the rest of my discussion assumes that it has been surmounted. At this point, then, the crucial question that senators must decide is what they believe the Constitution of the United States, at least as interpreted by the Supreme Court, should look like years from now. They must therefore ask if these nominees offer compelling visions of what our constitutional order truly is (or should be). The good and the evil that these men and women do will live long after they leave the bench.