Freedom Line Blog

Randy Barnett, writing for the American Spectator, captures the zeitgeist of the Tea Party movement in a rousing essay about the need going forward for a different kind of mindset when judging conservative judicial nominees:

Now we will have an election to decide the ultimate fate of Obamacare. But this election should also be about who will be selected to serve on the Supreme Court. Should Republican presidents continue to nominate judicial conservatives who are enthralled with the New Dealers’ mantra of judicial restraint? Or should they nominate constitutional conservatives who believe that it is not “activism” for judges to enforce the whole Constitution? All future nominees should be vetted not only for their views on the meaning of the Constitution, but for their willingness to enforce that meaning.

With Barnett’s distinction in mind, it’s no wonder that Tea Party-inspired Senators like Marco Rubio (FL), Mike Lee (UT), Rand Paul (KY), Jim DeMint (SC) – and soon-to-be Senator Ted Cruz (TX) – all identify themselves as constitutional conservatives.  Restraint in judging liberalism’s faulty governing assumptions hasn’t gotten conservatives many substantive victories.  We need smart, bold nominees eager and able to make the case for the kind of limited government our Founders envisioned; both in the political branches and on the bench.

And I don’t know if I like it.  Usually, the younger, more effete version of John McCain likes to flash his maverick status all over controversial domestic policies by siding with Democrats on cap-and-trade, immigration reform, and civilian trials for (some) terrorists.  Today, though, he reminds America that, yes, he is still a Republican.

In a blinding moment of clarity, the other Senator from South Carolina concisely – and correctly – identified the proper route for Ninth Circuit judicial nominee Goodwin Liu.

“I’m in the camp that you can be an active Democrat … and still sit on the bench,” Graham said. “But this guy’s a bridge too far for me. He should take those views and run for office.”

This from a Republican who voted for Supreme Court Associate Justice Sonia Sotomayor!  To be fair, perhaps if Sotomayor where on record as identifying constitutional rights to “education, shelter, subsistence, health and the like, or to the money these things cost,” or imposing perpetual racial quotas, maybe Graham would have voted no on her too.

Graham’s criticism is a perfectly stated counterargument for the Leftist lawyers and judges who think the courts are where laws are made.  They’re not.  Reading the Constitution, Article I, clears that up.  If Professor Liu really wants to “change” America through law, he should saddle up and challenge Senator Diana Feinstein when she’s up for reelection.  Otherwise, stick to writing academic thought pieces at Berkeley.

Kudos, Senator Graham; who knew you had it in you?

Admit it; the headline isn’t impossible to believe.  It’s even less surprising to realize that all of the major criticisms of the Manchurian Candidate-turned-President – lacks relevant experience, a paper trail, or any notable accomplishment aside from self-promotion –are being lodged against his most recent Supreme Court nominee Elena Kagan.  Sure, as an Assistant White House Counsel, former Harvard Law dean, and Solicitor General she’s held some important positions.  But a light scrubbing of that parchment is revealing almost no key accomplishments with any of them.

After reading all of Kagan’s scholarly publications in two decades as an academic – three law review articles, two small essays, and two brief book reviews – law professor Paul Campos makes this observation about its quality in The Daily Beast:

At least in theory Kagan could compensate somewhat for the slenderness of her academic resume through the quality of her work. But if Kagan is a brilliant legal scholar, the evidence must be lurking somewhere other than in her publications. Kagan’s scholarly writings are lifeless, dull, and eminently forgettable. They are, on the whole, cautious academic exercises in the sort of banal on-the-other-handing whose prime virtue is that it’s unlikely to offend anyone in a position of power.

How Obama-esque.  Until, that is, ultimate power is achieved and the offending can begin in earnest.

According to a book review she wrote back in 1995, Supreme Court short-lister Elena Kagan wants to judicial nominee hearings to get back to the good ole’ days of Robert Bork.  As reported by ABC News:

Kagan argues that the Bork hearing should be a “model” for all others, because even though it ended in the candidate’s rejection, the hearings presented an opportunity for the Senate and the nominee to engage on controversial issues and educate the public.

“The real ‘confirmation mess’ ” she wrote, “is the gap that has opened between the Bork hearings and all others.”

“Not since Bork,” she said, “has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy.”

“The debate focused not on trivialities,” she wrote, but on essentials: “the understanding of the Constitution that the nominee would carry with him to the Court.”

At bottom, Kagan called for an open, “educative” process that put differing constitutional philosophies under the microscope.  I’m all for it; so too are most conservatives.  It will be interesting to see if and when Kagan is nominated by President Barack Obama to fill the next vacancy if she still thinks that way when it’s her turn to defend her views.

After all, Bork was the last nominee to make it to the hearing room and not be confirmed.

Reason Magazine’s Damon Root pens a spirited argument for ridding judicial nomination hearings of their pretended denials of litmus tests.

It’s time for both sides to come clean about the importance of judicial philosophy. That means no more grandstanding about “open minds” and double standards. If Constitutional interpretation matters—and it most certainly does—then senators have an obligation to query each and every nominee about it and vote accordingly. That’s the only way we’ll ever have a real debate about the Constitution and the courts.

Indeed.  Now, if we could only get a few Senate Judiciary Committee members able to articulate a substantive, coherent judicial philosophy themselves we’ll be on to something.

The arbitrary love a vacuum, so when they find one, the temptation to fill it with inanity usually proves too great. Consider the case of Gloria Navarro. By all accounts, she is an accomplished Nevada attorney whose work as a public defender and prosecutor has won her a presidential nomination to be a federal district judge. While I suspect her judicial philosophy is to the left of Clarence Thomas, I nonetheless acknowledge that she is “qualified” to serve on the bench, if by that term it means owning a bar license and practicing as an attorney. Then again, those are my requirements, not the Constitution’s. While the nation’s fundamental law details the age and citizenship requirements for the president and members of Congress, it has no specific qualifications for being a federal judge.

But don’t tell that to the politicians who impose them nonetheless. Since adult conversations about judicial philosophy are off the table, most presidents and senators resort to indirect indicia of competency like schools attended, grades earned, and clients represented. Some demand judicial experience. Others, like Senator Harry Reid with Navarro, prefer “real world” (i.e. non-judicial) experience when it suits their nominee.

In fact, there’s more than a tinge of bias against attorneys who didn’t hit their professional stride until well after beginning the practice of law. To hear politicians and pundits, unless a lawyer’s resume includes Ivy League credentials and a federal clerkship followed by a career serving the upper echelons of government and mammon, a president shouldn’t even bother with a nomination. Yet, these types of opportunities depend on a level of access that is unattainable for most people in their teens and twenties. It is almost as if the comparatively unfettered ability to rise in the political and economic realms must be compensated for when it comes to peopling the bench. Though many in the academy lionize him, few spend much time discussing the fact that Robert Jackson rose to prominence and then the Supreme Court without having trodden the golden path of law review, clerkship, and partner.

All of which makes the American Bar Association’s judicial rating system seem like an exercise in subjective grading. When a nominee’s rating depends on the make-up of a particular committee, the resulting scores have all the marks of a high school prom vote. Like an American Idol panel, an ABA process does not (and perhaps, cannot) employ a consistent standard for judging someone “qualified” when there are no concrete qualifications to use.

Instead of weighting a “qualified” rating towards accomplishments clustered at the beginning of a career, the ABA should reward nominees that have made significant contributions to the practice or study of law. After all, a good judge is someone who appreciates both the realities of legal practice, and the history, philosophy, and structure of the American Constitutional order. Lawyers serving as judges should have a breadth of experience and a depth of knowledge. If that sounds too much like the exceptional being the enemy of the competent, it is. But it emphasizes the accomplishments earned over a career, not standardized test scores. Be not afraid; there are more than enough attorneys to “qualify” under such a standard. It just may take a little extra work to find them.

Hopefully, the Obama Administration will come to the same realization its predecessor did and chuck the pretense that a professional cartel like the ABA can be objective. Like any advisor, when the ABA stopped providing useful information it was rightly fired. With one of President Obama’s own nominees getting less respect than her achievements deserve, now would be a good time to make the break permanent. Maybe then competent attorneys like Navarro can move past debates about qualifications to more serious matters: like whether her judicial philosophy squares with the Constitution itself.