Congressional influence on SCOTUS ideology

[politicophile]

Following is an article I wrote about whether and to what degree Congress should attempt to influence the ideology of the Supreme Court. My footnotes, alas, are not included. If you would like to know the sources of my quotations, I would be happy to provide them.

The article is RATHER LONG, but nothing you can't read start to finish in five minutes or so. Do you agree or disagree with my position?

EDIT: Come on guys, it isn't that long. Where's the love?

[politicophile]

Ideology and the Spirit of the Laws

Politicophile

The Constitution creates a relationship between the Supreme Court and the Congress in which the legislative has significant influence over the composition and function of the Court. For example, the House and Senate are given, respectively, the power to impeach and remove judges from office, and the Senate may reject the President’s judicial nominees. Through the use of these powers, Congress has the capacity to influence the ideological direction of the Supreme Court, should it choose to do so. Ambiguity arises, however, in determining whether and to what extent consideration of judicial ideology in Congressional decisions related to the Court is constitutionally appropriate. Rightly interpreted, the Constitution informs Congressmen that votes on Supreme Court nominations and impeachment actions should be based entirely on the grounds of general judicial competence and the Justice/nominee’s commitment to upholding the text of the Constitution: judicial ideology should not be a concern.

Congress is first able to influence potential Justices during the confirmation process, as all nominees must be approved by the Senate before they can be sworn in. “[The President], by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court.” The Constitution does not provide guidelines for determining the sort of candidates that should be consented to, however. As a result, there has been significant debate in the Senate over what standard should be used.

As was stated previously, Senators should look at two factors when they are studying the qualifications of a nominee: judicial competence and commitment to the Constitution. The first of these is a prudential consideration: the Supreme Court is a powerful and influential organization that should be comprised of the greatest legal minds of a generation. Justices should have extensive knowledge of the legal system, as well as a comprehensive understanding of Court precedent. All potential Justices should, at a minimum, be well-versed in constitutional law and the history of the Supreme Court.

Secondly, nominees must prove to the Senate that they will faithfully interpret the Constitution and not use their position of judicial power to “legislate from the bench”. Nominees should be able to state explicitly that their rulings will be directly connected to their interpretation of the Constitution (and thereby, the original text). As C. Boyden Gray explained to Congress, “In our democracy, decisions on major political issues should be made by the people and their elected representatives, not by unelected judges.”

Part of the reason that ideology becomes a key issue in Supreme Court battles is that the Court, although not technically a legislative body, has the ability to profoundly affect national policy. As a consequence, it is vital for a political party to have their general ideology supported by a majority of Justices. But despite the convenience of packing the Court with party loyalists, the Constitution opposes the practice, as it explicitly grants all legislative authority to the Congress. Ideology only truly matters when the Court assumes the improper role of partisan legislative body. Yet, some continue to maintain that ideology should not be disregarded because, in reality, a Justice’s political views can have a profound impact on their rulings. In his testimony to Congress, Professor Cass Sunstein defended the importance of taking ideology into consideration:

[politicophile]

“Almost everyone would agree that the President should not nominate, and the Senate should not confirm, someone who thinks that the Constitution does not protect private property, or permits schools to be segregated on the basis of race, or allows government to suppress political dissent.”

Supporters of ideological investigation of judicial nominees cite examples of extreme ideologies in order to prove that nominees who hold certain beliefs should be voted down in the Senate. However, the three examples listed above would all be grounds for rejecting a nominee without having to consider ideology. To begin, anyone who thinks that the Constitution does not protect private property is being blatantly unfaithful to the plain text of the Constitution, which says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated… but upon probable cause.” There is no question that private property is protected under the Constitution. Secondly, anyone familiar with Court precedent would understand that the unconstitutionality of school segregation was definitively established in the landmark case Brown v. Board of Education. It would be highly irregular to overturn an established precedent that was itself an overturning of a much earlier precedent. Thus, a nominee’s opposition to Brown would indicate a lack of deference to established precedent. Finally, the first amendment is nearly universally understood to protect political dissent under “the freedom of speech, or of the press.”

It is thus maintained that, in the context of judicial nominations, ideology should not be used to determine the suitability of a candidate. The Constitution is a well-engineered document that does not lend itself to ridiculous interpretations. As a result, extremely disagreeable ideologies are definitionally divorced from the original text, and nominees holding these views can be rejected. Alternatively, any ideological stance that can be justified by an appeal to the letter of the Constitution should not be used by a Senator as an excuse for opposing the appointment of a nominee.

The other major power that Congress has over the judiciary is the ability to impeach Supreme Court Justices and remoce them from office. This safeguard against judicial excess could be misused by Congress to eliminate Justices who disagreed with the ideology of the majority party, as will be discussed.

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

More specifically, the House of Representatives is given the power of impeachments. “The House of Representatives shall… have the sole Power of Impeachment.” In the event of an impeachment, the Senate would then act as a jury for the case. “The Senate shall have the sole power to try all Impeachments.” The Senators vote on articles of impeachment and, should any article receive supermajority support, the officer in question would be removed.

Questions surrounding the appropriate grounds for impeachment have centered on the phrase “high Crimes and Misdemeanors”. The Framers specified that treason and bribery were included in this category, but they did not give any other examples. This has led to some significant disagreements over which offenses are severe enough to merit impeachment.

[politicophile]

One passage used to establish the original intent of Senatorial advice and consent is the “good behavior” clause, which gives Justices lifetime appointments, with the addendum that they can be removed from office for unacceptable behavior. “The Judges… shall hold their Offices during good Behavior.” One interpretation of this passage is that it implies Congress can remove Judges from office for any sort of behavior unbecoming of a member of the judiciary. The prosecution at the impeachment trial of Justice Samuel Chase read the passage in this way.

“The plain and correct inference to be drawn from this language is, that a judge is to hold his office so long as he demeans himself well in it; and whenever he shall not demean himself will, he shall be removed.”

This reading gives Congress enough latitude to use the impeachment process as a tool for controlling the ideology of the Court. Senators would need only to find some instance of misconduct in the records of Justices of other ideologies in order to sack them. Yet, it was the clear intent of the Framers to establish an independent judiciary. Thus, contrary to these claims, the phrase “good behavior” does not mean that any bad behavior (read: unwanted ideology) is grounds for impeachment. Rather, it was inserted to affirm that Justices do not receive unconditional lifetime appointments: high crimes and misdemeanors are sufficient grounds for impeachment.

On the most fundamental level, the Congress should not attempt to control judicial ideology because the judiciary is intended as a check on the legislative power of the Congress. If ideology became the primary consideration, the Supreme Court would become a rubber stamp for Congressional legislation. This worry was expressed eloquently by Dean Douglas W. Kmiec when he said:

“Undertaking to make nominees carry a type of political burden of proof will over time merely invite a subservience of mind and personality that is contrary to an independent judiciary."

When ideological differences of opinion are used to justify congressional opposition to a Justice or nominee, Congress is essentially saying that a judicial ideology that does not reflect that of the legislative is not permitted. This effectively eliminates the possibility that the Supreme Court might rule against the predominant congressional ideology. The theory of checks and balances, therefore, recommends that the judiciary remain ideologically independent from, and potentially in opposition to, the general ideological sentiments of the Congress.

In the context of impeachment, partisanship can be even more deleterious to judicial independence. If Justices could be impeached or removed from office for trivial reasons, the Supreme Court would be unable to check the power of the legislative.

“A judge may thus be impeached and removed from office for an act strictly legal, when done, if any House of Representatives for any indefinite time after, shall for any reason they may act upon, choose to consider such act improper and impeachable. The constitution, sir, never intended to lay the judiciary thus prostrate at the feet of the House of Representatives.”

In the interests of maintaining a government in which the Supreme Court upholds the Constitution even in the face of legislative opposition, Congress should avoid attempting to influence the ideological direction of the Supreme Court. Efforts to the contrary threaten the independence of the judiciary and thereby make the Congress excessively influential. While it is entirely appropriate for Congress to reject unqualified nominees and to impeach felonious Justices, these same capacities should never be misused to impose a litmus test for judicial ideology.

[alansmithee]

First off, from a technical standpoint I have a small problem with this article: it doesn't seem to actually support your conclusion. You never exactly say why Congress shouldn't influence the ideological makeup of the court, except for in your conclusion. And then, it's not strongly supported. You say that allowing an ideological confirmation would make Congress have too much influence, but fail to comment on the fact that by not looking toward ideology you may allow the executive branch to have too much power.

Also you list 3 ideological criteria that supposedly should restrict Justices from being nominated and confirmed, each of which at one time or another has been supported by the Supreme Court (or in the case of private property protection, a lesser Court of Appeals).


As to the conclusion, I don't think there's a definitive answer. Ignoring ideology entirely turns a blind eye to the reality that personal ideology can and does influence judicial rulings. However, I tend to agree with you not so much to lessen the influence of Congress, but more because I tend toward strict constructionism of the Constitution. And I think it is much easier for a justice who is a strict constructionist to ignore any personal ideological bias, simply because there tends to be less ambiguity.

edit:hmm, there was an article here...

[alansmithee]

edited for redundancy

[politicophile]

EDIT: Sorry for the delay, everyone - I think that I finally have it the way I want it... Firefox was crapping out on me, so I had to fall back to Explorer...

[Elphaba]

Adam, I found your thesis very well written and I applaud your work. My knowledge of the constitution doesn't rise to your level of scholarship, so I can't offer the critique you have requested.

Would you be willing to give me two concrete examples in the nominations of Roberts and Miers and how they apply to your argument?

[politicophile]

Originally Posted by Elphaba

Adam, I found your thesis very well written and I applaud your work. My knowledge of the constitution doesn't rise to your level of scholarship, so I can't offer the critique you have requested.

Would you be willing to give me two concrete examples in the nominations of Roberts and Miers and how they apply to your argument?

Thank you for the compliment, Elphaba. Perhaps it will offset the less enthusiastic review I expect from my Con Law prof next week!

In the way of examples, I can only point you towards the testimony of Senators on either side of the issue, so here we go!

My former employer, Senator Susan Collins said the following:

Originally Posted by Susan Collins

“I have great confidence in Judge Robert’s legal scholarship, his integrity, and his commitment to the rule of law. His decisions will be guided not by his own personal view of what the law should be, but rather by a disciplined review and analysis of what the law is. The overwhelming bipartisan support that Judge Roberts received today speaks volumes about his qualifications. He is the right person for the job,” Senator Collins said.

Link to Collins' Press Office

This is precisely the correct attitude to have when it comes to the nominations process. Senator Collins looked at Roberts' qualifications and his "commitment to the rule of law", which is another way of saying his faithfulness to the Constitution. Now, the Senator is very strongly pro-choice: she was one of a handfull of Republicans to vote against the Partial Birth Abortion Ban Act of 2003, as an example. Even so, she voted to confirm John Roberts, a man who could very concievably vote to overturn Roe v. Wade. If only all Senators understood that the President is the one who decides the ideology of Federal Judges and the Senate simply makes sure he doesn't appoint Mier-, uh, cronies or otherwise unqualified people.

Dianne Feinstein, the sole woman on the Judiciary Committee, saw things differently:

Originally Posted by Dianne Feinstein

I basically believe that once someone has earned a right they should not lose that right and the rights coming before the court in this upcoming session and in future sessions are really critical rights.

I am the only woman on this committee. And when I started, I said that was going to be my bar. He didn’t cross my bar.

Link to Senator Feinstein's Press Office

The very, very obvious translation of this statement is, "I don't think Roberts will uphold a woman's right to an abortion, so he doesn't 'cross my bar'." This is the danger I highlight in my thesis above: Senator Feinstein is saying that SCOTUS nominees must agree with her on the issue of abortion or she will vote against them. If enough Senators adopted this position, then the Court would no longer operate as a check on the legislative... I'll let you fill in the rest of the argument, but you see where this is going.

I hope that is a satisfactory set of examples. If you were looking for something else, by all means, tell me and I'll try to provide it.

[Elphaba]

Thanks, Politico. That clarifies it very well for me. It doesn't change my confusion about nominating Miers though.

[politicophile]

Yeah, so nobody seems interested in reading my article, I gather. It actually isn't all that long: just under six pages double spaced in Word.

I highly encourage you to read the article, but if you feel you don't have the time, just answer the following question:

Should the Congress attempt to influence the ideology of the Supreme Court? If so, to what degree?

[dksuddeth]

Originally Posted by politicophile

Should the Congress attempt to influence the ideology of the Supreme Court? If so, to what degree?

I say no, simply because SCOTUS is the interpreter and marshall of the constitution, not the long arm of congress. congress can initiate a change in the constitution but they can't interpret the constitution for SCOTUS.

[flstf]

Well written article. You have gone much deeper into the nomination process than I have ever attempted.

Unfortunately ideological differences seem to be very much a part of the "advice and consent" game today. This is resulting in President's having to find appointees who have never really let their true opinions about the important issues of the day be known. This probably eliminates quite a few very qualified people from consideration.

I find it hard to accept that smart people like Roberts and Miers have been able to operate so long without a clear understanding of where they stand on some important issues. But as it turns out, maybe they are/were very smart to do so, as it makes them much more likely to be nominated and confirmed.

I guess the lesson to be learned by anyone who hopes to be nominated is to keep your opinions on the important issues of the day to yourself.