Earth to Obama: Your Supreme Court Choice Is SUPPOSED to Galvanize Republicans

Democrats chose Obama because he promised change from eight years of Bush. This includes having liberal nominees for the federal courts. But many articles have portrayed Obama as seeking to avoid controversy with his choice for the Court.

But the judicial nomination process -- especially with respect to the Supreme Court -- is inherently a political battleground. Republicans know this, and so do Democrats. The political parties have known this from the start of the nation's history.

Judicial Appointments Have Always Been "Political"
Marbury v. Madison is the first case that law students read in about 99% of required constitutional law courses. The legal issue was fairly simple -- the plaintiff Marbury sought the delivery of his commission to sit as a justice of the peace of the District of Columbia. Madison, the Secretary of State, refused to deliver it at the request of newly elected President Jefferson.

The broader background facts, however, demonstrate that esteemed early Americans viewed courts in stark political terms. Before Jefferson took office, the lame duck Adams administration passed a law augmenting the size of the federal judiciary and rushed to fill the additional slots with Federalist Party nominees. Time ran out before some of the appointees could get their commissions, which they needed to sit as judges.

After Jefferson took office, he and the new Congress repealed the statute that enlarged the size of the judiciary and withheld the undelivered commissions because he did not want the Federalist Party nominees to sit in judgment of the Democratic-Republicans. In order to evade Supreme Court review, Jefferson shut down the Court for over one year. Despite this behavior, Jefferson is a exalted figure in United States history. Today, by contrast, politicians feign outrage over ideology -- that is, if their own party is not making the judicial nomination.

Politics Influences Judicial Appointments Today, and the Constitution Anticipates This Situation
Hearing the parties disingenuously assert that ideology should not play a role in the selection of judicial candidates is laughable. If both parties followed their insincere anti-ideology rhetoric, then Scalia, Thomas, Alito and Roberts would not sit on the bench, nor would Ginsburg and Breyer. Stevens and Souter are a bit more complicated. The normal script, however, describes both of these justices as Republican "errors," which supports my thesis that presidents pick candidates based on ideology.

If the Framers of the constitution did not want the process to have a political dimension, then they would not have allowed the President to make nominations and the Senate to confirm the appointments. The tremendous role of the President and Senate ensure that politics will continue to influence judicial selections.

Ideology Is Not Inconsistent With "Judging"
To say that a judge is "ideological" does not mean that a he or she lacks "judgment" or that he or she does not follow doctrine or principle. Conservatives have described Sotomayor as an ideologue, despite that fact that she has ruled against numerous civil rights plaintiffs and against the Center for Reproductive Rights in a case where she steered very closely to pre-existing precedent.

The Republicans have constructed their list of judicial nominee faux pas, and "gay marriage" has joined abortion as a potential judge-slayer. Articles in both the Washington Post and the Los Angeles Times outline the conservative (idelogical) strategy. For example, Republicans hope to go after Seventh Circuit Judge Diane Wood, if Obama picks her to replace Souter, because she dissented in a pair of cases in which the circuit upheld state bans on partial-birth abortion. But until recently, Woods' dissenting view mirrored Supreme Court doctrine on the issue, that is, until the five conservative justices -- minus O'Connor and plus Alito -- decided that Congress could ban the procedure. The majority's effort to distinguish precedent that undermined its conclusion was strained. Basically the contrary ruling happened because O'Connor left the Court, Alito replaced her, and Kennedy is squeamish about the procedure [Note: I am squeamish about medicine, which is exactly why I went to law school.].

Change Is Not More of the Same
From the very beginning of the Democratic primaries, I disagreed with my liberal colleagues who described Obama as a leftist dream come true. I suspect that many of them are beginning to see the light at this point.

Progressives, however, can push presidents to do things that they otherwise might not do. This is how broad political change has occurred historically. Unless liberals remind Obama that we did not vote for him in order for him to capitulate to Republicans or adhere to his own right-leaning instincts, then he will have no incentive to stop doing so.

Related Readings on Dissenting Justice:

Strikingly Similar: Comparing Sotomayor's Views on Sex and Race With Statements By O'Connor, Ginsburg, Scalia and Kennedy

Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"

Rosen Defends His Misreading of a Judicial Footnote: Says Judge Winter's Writing "Not a Model of Clarity"

Earth to Orrin Hatch: Even Conservative Judges Make Policy!

Talking Points on Souter Replacement?

Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor

Earth to Orrin Hatch: Even Conservative Judges Make Policy!

Now it's Orrin Hatch's turn to go after Judge Sotomayor. Hatch, a member of the Senate Judiciary Committee (and thus a gatekeeper for potential Supreme Court nominees) recently said that Sotomayor has a "problem" because she previously stated that courts of appeals "make policy." Sotomayor apparently made the comment during a conference at Duke University. Fox News played a video clip of Sotomayor's comment while Hatch appeared on the network for an interview.

The clip is too short to give context to the statement, which makes it the perfect scare tactic. Hatch has responded to the video with typical political hysteria:

I'm not very happy about judges who will substitute their own policy preferences for what the law really is, who think that they can run the country from the bench when they actually have a limited role.

But saying that judges "make" policy is not the same thing as saying that judges "substitute their own policy preferences for what the law really is," and it certainly does not endorse the idea that judges "can run the country from the bench." I am not aware of any rulings in Sotomayor's nearly 20-year judicial career that explicitly or implicitly embrace the scarecrow position that Hatch articulates. Hatch, like Rosen, has prejudged Sotomayor without engaging her work -- even though he concedes that "she has a whole raft of opinions that I think would have to be scrutinized very carefully" (emphasis added).

Do Judges Make Policy: Yes and No
Although the extremely short length of the video makes it impossible to know what Sotomayor intended her comment to convey, it is possible to examine the issue of judges and policy in a broader context. The question is far more complex than Hatch acknowledges.

First, let's tackle the easy issue: Do judges make laws, or, acting solely on personal will, do they create broad rules for everyone to follow? No. Federal courts only hear cases or controversies involving disputes over federal law (with very few exceptions). Outside of these cases or controversies, courts, unlike lawmakers and executives, cannot simply announce policy. So, Hatch's statement about imperial judges hardly describes the federal bench, and it certainly does not describe Sotomayor's judicial philosophy, which many people view as centrist.

The second way of approaching this issue is more complex. Given the decreasing ability or willingness of the American public to engage complex arguments, I thank the few of you who keep plowing through this essay.

Conservative and Liberal Judges "Make Policy"
When judges decide cases, the issues are usually straightforward. But there are many cases where the law is either unclear or where the relevant constitutional provision, statute or common law principle leaves a fair amount of discretion for courts to pick among reasonable choices. In those instances, particularly in the context of constitutional law, courts arguably "make policy" as they attempt to define the boundaries of legal constraints and obligations. Conservative and liberal rulings follow this principle. Because it is popular to assume that judicial policymaking is unique to liberals, this essay primarily examines conservative judicial policymaking. Consider the following set of affirmative action cases.

Parents Involved in Community Schools v. Seattle School District Number 1
In Parents Involved in Community Schools v. Seattle School District Number 1, the Supreme Court invalidated policies adopted by Seattle, Washington and Louisville, Kentucky that were designed to prevent public schools from becoming racially homogeneous. Five members of the Court, including Justice Kennedy, held that the policy was unconstitutional. But in his somewhat overlooked concurring opinion, Justice Kennedy argued that he was open to other measures that could maintain or achieve diversity. He then proceeds to list those alternative policy choices:

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.

Kennedy is one of the most powerful members of the Supreme Court. Because he is the sole "moderate" (this is a highly relative description) among an even numbers of conservatives and liberals, his perspective will likely determine the outcome in very divided cases.

Even though Kennedy's opinion simply interprets the constitution, it is difficult not to view his "suggestions" in Parents Involved as "policy." After the ruling, school districts across the country began implementing new policies designed to create or maintain diversity while adhering to Kennedy's specific policy requirements. Kennedy and the conservatives believed that the existing policy choices were unconstitutional. The alternatives Kennedy suggests, however, would be acceptable to him even if they achieved the exact same result as the ones he voted to invalidate in Parents Involved.

Lawyers and legal scholars prefer to call Kennedy's opinion "doctrine," but if it defines the boundaries around which acceptable policy can operate, the opinion is not a passive bystander in policy debates regarding educational diversity. Instead, it is a major player, as demonstrated by school districts shifting their policies to meet Kennedy's preferences.

Richmond v. Croson
In Richmond v. Croson, the Court struck down a set-aside program which allocated a percentage of municipal contracts to minority-owned business. The Supreme Court struck down the set-aside plan, even though the city argued that it was necessary to remedy discrimination in the contracting industry. Justice O'Connor authored the Court's opinion, and, like Kennedy, suggested alternative policies to achieve the goals of diversity:

[T]he city has at its disposal a whole array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races. Simplification of bidding procedures, relaxation of bonding requirements, and training and financial aid for disadvantaged entrepreneurs of all races would open the public contracting market to all those who have suffered the effects of past societal discrimination or neglect. Many of the formal barriers to new entrants may be the product of bureaucratic inertia more than actual necessity, and may have a disproportionate effect on the opportunities open to new minority firms. Their elimination or modification would have little detrimental effect on the city's interests, and would serve to increase the opportunities available to minority business without classifying individuals on the basis of race. The city may also act to prohibit discrimination in the provision of credit or bonding by local suppliers and banks. Business as usual should not mean business pursuant to the unthinking exclusion of certain members of our society from its rewards.

When cities follow O'Connor's suggestions, they are technically implementing their own policies, but they do so in response to the conditions that her opinion describes. O'Connor's ruling -- not the Equal Protection Clause -- defines the specific policy constraints and determines the boundaries around which all governmental actors must conduct business. Accordingly, it is difficult to separate her opinion from the subsequent policies.

Regents of the University of California v. Bakke
In Regents of the University of California v. Bakke, the Supreme Court ruled that achieving racial diversity in higher education is a "compelling" governmental interest. The 1978 ruling has immensely shaped education policy by determining how schools can pursue this goal.

Justice Powell's ruling recognized the compelling interest in educational diversity, but stated that schools could not use quotas to pursue this goal. Instead, he encouraged them to use the "Harvard plan," which he described as one that considered race as a "plus" among many other factors in the admissions process.

Since Bakke, schools all over the country require applicants to submit personal statements and essays, which allow prospective students to express important dimensions of their background and personal struggles to demonstrate their contribution to diversity. Admitting students who write about their experiences with racial or gender discrimination or disadvantage is a constitutional method of creating diversity -- even if the number of students of color admitted each year mirrors the outcome that a quota would have achieved (a point the dissent in Bakke raises). Bakke has greatly impacted the admission of students to institutions of higher education.

Other Cases: One "Conservative," One "Liberal"
Although the preceding discussion focuses on "policies" implicated in the Court's affirmative action doctrine, the same argument applies in other contexts.

Plessy v. Ferguson
Plessy v. Ferguson is one of the most "conservative" cases by 2009 moral standards. The ruling validated Jim Crow and segregation. The Supreme Court held that the Fourteenth Amendment guarantee of "equal protection" only applied to political and civil equality but not social equality. The Court, and many legal thinkers at the time, viewed racial mixing in places of public accommodation, public schools and marriage as "social" concerns. Accordingly, laws that mandated racial segregation or which prohibited interracial marriages did not violate the constitution.

The Court held that in order to satisfy the equal protection requirement, states simply needed to provide "separate but equal" facilities. This holding does not create the policy of equal protection (the Fourteenth Amendment does that), but it certainly establishes boundaries around which states could legislate. And while the "equal" part of the standard would remain elusive, in the 1950s the Supreme Court began to take the equality requirement seriously and invalidated "blacks-only" higher education programs that provided grossly inferior facilities and training.

Roe v. Wade
Roe v. Wade epitomizes the horrors of liberal policymaking for conservatives. In that case, the Supreme Court ruled that the right to terminate a pregnancy was a protected "liberty" interest, guaranteed by the Due Process Clause of the Fourteenth Amendment. The Court, however, held that states could legitimately protect the health of women undergoing abortions and safeguard potential life.

The Court then mapped out an approach which allowed states to ban abortions altogether after "viability," unless they were necessary to protect a mother's life or health, and to regulate abortion providers so that the procedure would not imperil a patient's health. The Roe framework was technically "doctrine," but it greatly constrained the ability of states to regulate abortions prior to viability. Consequently, the case established the minimum standard for nationwide abortion policy until it was modified by the Court in 1992.

Closing Thoughts
The country deserves reasoned deliberation and reflection over Supreme Court nominees. Thus far, I have seen juvenile antics that do not even pretend to examine Sotomayor's judicial record.

Immediately after Justice Souter announced his retirement, a stream of white male commentators announced their anxiety over a woman of color sitting on the Supreme Court. Apparently, having just two white women on the Court in its entire history is as much as some people can bear. Then Rosen publishes an article that describes Sotomayor as a "gamble," even though his essay contains factually incorrect information and reviews of Sotomayor that sound a lot like petty gossip. Now, Hatch is using a short video clip, divorced from the context of a longer panel discussion, in order to describe her as a "problem" candidate.

Sotomayor's critics have not reviewed one judicial opinion she has written, nor have they referred to the ABA evaluation of her qualifications. Instead, they keep focusing on irrelevant criteria for assessing her competence. Racism and sexism also use irrelevant criteria to defeat qualified individuals. Regardless of whether Sotomayor's critics are sexist and racist, the end result of their actions looks the same.

Utterly Empty Rhetoric: Some Conservatives Argue That the Iowa Supreme Court Engaged in "Judicial Activism"

Opponents of the Iowa Supreme Court ruling that invalidates the state's anti-gay marriage law have invoked a popular rhetorical tool used to challenge court opinions: "Judicial activism." RNC Chair Michael Steele, for example, describes the ruling as "another example of judicial activism currently threatening family values in America." Conservative Ed Whelan posted an essay on the National Review Online which argues that the ruling proves that: "The lawless judicial attack on traditional marriage and on representative government continues." Republican State Representative Roy Blunt of Missouri opines that: "The Iowa Supreme Court chose today to legislate from the bench by redefining marriage without any concern or deference to the democratic process. . . ." Conservative blogger Rod Dreher at Beliefnet contends that "gay marriage" was "forced on Iowa." Finally, a Des Moines Register article quotes various same-sex marriage opponents who argue that the Iowa Supreme Court "stepped out of its proper role," "redefined[d] marriage," and "advance[d] an agenda the majority of Americans reject."

Don't Believe the Hype: Judicial Activism Is an Utterly Empty Concept
Judicial activism is an utterly empty concept. Contrary to its deceptive connotation, the phrase does not articulate a real theory of judging. Instead, judicial activism is simply a rhetorical device used by individuals across the political spectrum who wish to bash courts for invalidating statutes they find desirable. If a person does not favor a particular law, he or she will not describe a court's invalidation of such law as an awful moment of judicial activism.

Claims of judicial activism are commonly associated with conservatives who fear "liberal" (or "elite") judges imposing their views upon a more moderate or conservative society. But liberals have also complained of overzealous judges defeating democracy. Indeed, one of the most highly criticized eras in the history of the Supreme Court began at the turn of the 20th Century when conservative free market justices liberally construed the Fourteenth Amendment and recognized a constitutionally protect right of "economic liberty."

During the so-called "Lochner Era," the Supreme Court used the concept of economic liberty to invalidate over 200 state and federal laws that regulated the economy and the health and safety of workers and the public. This pattern continued up until the New Deal -- after which the Great Depression, turnover in the Court's personnel, FDR's vitriolic criticism of Court rulings, and a "switch" in one justice's position on the subject ushered in a new era of judicial deference on economic issues.

More recently, conservative federal judges have invoked the ambiguous concepts of federalism and state sovereignty in order to impose drastic limits on the operation of federal statutes, particularly in the area of civil rights. Yet, conservatives did not blast the Rehnquist Court for its "activism."

The Iowa Supreme Court Simply Applied the Law
The Iowa Supreme Court's ruling is steeped in constitutional analysis. One can disagree with the analysis, but that does not transform the ruling into something other than analysis.

Although the outcome of the case turns on the meaning of the Iowa constitution, much of the ruling discusses federal constitutional law regarding the meaning of equal protection. The Iowa Supreme Court held that denying same-sex marriage constitutes a form of "sexual orientation" discrimination. Even though the statute does not mention sexual orientation, it is patently clear that only gays and lesbians seek to enter into same-sex marriages (if not, we would see heterosexuals filing suit).

The Iowa Supreme Court then applied well established precedent and determined that because sexual orientation discrimination deviates from the state constitutional norm of equal protection, it could not engage in a deferential analysis of the state's reasons for banning gay marriage. Court's make these types of choices every day.

Although courts typically defer to lawmakers, when legislators use their authority to invade fundamental liberties or to discriminate on an improper basis, then judicial review is by necessity more invasive. Otherwise, constitutional freedoms would have very little meaning.

The Iowa Supreme Court invoked the same doctrinal concept of "rigid" judicial scrutiny that has allowed conservative judges to invalidate affirmative action policies, strike down a portion of the Violence Against Women Act, limit the ability of civil rights plaintiffs to recover damages from illegally behaving state governments, and to reverse a state court ruling grounded in statutory law, which ordered the Boy Scouts of America to stop discriminating on the basis of sexual orientation. If conservatives do not believe that the Iowa Supreme Court has the authority to overturn laws that violate the state constitution, then they must condemn conservative court rulings that invalidate statutes that implement liberal policy.

How About a "Real" Debate
Unlike many other progressives, the concepts of federalism and separation of powers do not threaten me. Indeed, these concepts have advanced progressive causes. Pointing to the separation of powers doctrine, liberal judges have deferred to legislatures and validated their efforts to remedy civil rights violations. And while southern states invoked "states' rights" rhetoric to justify slavery and secession, states have also invoked this concept in order to defy conservative federal policy on matters ranging from fugitive slaves, the environment, and criminal justice. Perhaps conservatives could find their "voice" in contemporary United States politics if they had the courage and creativity to view the Iowa ruling, for better or worse, as an exercise of state autonomy that traditional conservatives should respect.

The debate over the Iowa ruling, however, must not rest on the empty concept of judicial activism. If people disagree with the substance of the court's decision, they should debate the ruling on its own terms. Resorting to politically charged and bankrupt rhetoric will not advance discourse on this important subject.

Related Reading on Dissenting Justice: Iowa Supreme Court Strikes Down Gay Marriage Ban

Disturbing News from Pennsylvania: Two Judges Make Millions Sending Kids to Prison

An article in today's New York Times describes a disturbing scheme in which two judges received kickbacks for sending kids to privately run juvenile detention centers. The judges pleaded guilty to charges of income tax fraud and wire fraud. They received $2.6 million in kickbacks for sending children with very minor charges to detention. Here's a slice of the article:

At worst, Hillary Transue thought she might get a stern lecture when she appeared before a judge for building a spoof MySpace page mocking the assistant principal at her high school in Wilkes-Barre, Pa. She was a stellar student who had never been in trouble, and the page stated clearly at the bottom that it was just a joke.

Instead, the judge sentenced her to three months at a juvenile detention center on a charge of harassment. She was handcuffed and taken away as her stunned parents stood by.

“I felt like I had been thrown into some surreal sort of nightmare,” said Hillary, 17, who was sentenced in 2007. “All I wanted to know was how this could be fair and why the judge would do such a thing.”

Here's another question: If the facts of Hillary's case are as simple as the article describes them, why on Earth did the prosecutor place the teenager in the criminal justice system? This looks like overzealous prosecution (or overzealous reporting).