With a string of Obama judicial nominations now pending before the Senate, the rhetorical wars have begun anew and we are being treated to minihistories of past battles. Unfortunately some of these are revisionist history, not in conformity with known or easily ascertainable facts.
So, for example, some writers trace the dysfunction of the current judicial process back to the struggle over the confirmation of Robert Bork in 1987. In the view of Washington Post columnist David Broder (June 4, 2009), the Bork debate was "partisan and ideological" and "dominated by interest groups on both sides."
The facts are otherwise. Two titans of constitutional law, Democrat Laurence Tribe and Republican Philip Kurland, wrote a joint letter opposing confirmation of Bork, despite his acknowledged legal skills, on grounds that his philosophy was antithetical to core values in the Constitution. Republicans as well as Democrats, and conservatives as well as liberals, voted not to confirm.
Moreover, although voting on "ideological" grounds may demean the process, an examination of a nominee's judicial philosophy is certainly a prerogative, indeed a responsibility, of senators. Bork had campaigned tirelessly for the U.S. Supreme Court, appearing before the Federalist Society to assure its members that he was fully in accord with their conservative platform.
So it was sensible for senators on the Judiciary Committee to question these views, including his wholescale rejection of a right to privacy (not just abortion), his rejection of key aspects of civil rights decisions by the Court and by Congress and his embrace of sweeping executive authority. Far from being a grueling cross-examination as portrayed by some, the hearings were regarded by lawyers, judges and scholars as a fascinating tutorial for the American people on the foundations of our constitutional system, with each side having an opportunity to present its views.
A lot has gone wrong with the confirmation process since then. The lesson drawn from the Bork experience by later administrations and candidates has been to clam up and not to answer questions that would reveal their judicial philosophies, which could be done without disclosing how they would decide particular cases. (As a nominee, Justice Antonin Scalia refused to say what his views were on Marbury v. Madison, the bedrock decision establishing a right to judicial review.)
As the prospect for meaningful discussion has dried up, people on both sides of issues have been drawn to inflating the importance of nonissues or peripheral matters. Witness the current discussion prompted by President Obama's stated belief that judges should have empathy for the plight of ordinary or disadvantaged people. This has been twisted into a claim that Obama and his nominees should not have empathy for the situation of anyone else.
As long ago as 1938, the Supreme Court suggested that, when the claimant was a member of a "discrete or insular minority" disfavored by the political processes of government, courts should exercise a more searching inquiry into the claim.
Broder and others seemingly pine for a day when the Senate may again be satisfied to examine "only professional credentials." That would be unfortunate. Most legal commentators implicitly recognized the importance of judicial philosophy when they dismissed as disingenuous or inaccurate Chief Justice John Roberts Jr.'s argument before the Judiciary Committee that a judge's role is to serve as an umpire calling balls and strikes. Certainly, for example, senators should be entitled to a reply to an inquiry about whether constitutional claims presented by a member of "a discrete or insular minority" should be subject to a more searching inquiry than other claims.
Serious work is needed to restore the integrity of the judicial confirmation process. It may be, for example, that at least preliminary questions and answers about judicial philosophy can be obtained away from the glare of Senate lights and cameras. But one thing should be clear: The answers do not lie in excluding the American people and their elected representatives from having a voice in the composition of an institution that so affects their lives and the nation's future.
William L. Taylor, the chairman of the Citizens' Commission on Civil Rights, has been a civil rights lawyer for 55 years. He played a leading role in the successful effort to deny confirmation to the Supreme Court to Robert Bork.
