Judicial Selection: Does Ideology Matter?
The Association recently asked President George W. Bush to reconsider his decision to end the long-standing presidential practice of considering the views of the American Bar Association before nominating a candidate for judicial office. We urged that judges should be above ideology and politics and that an independent, non-ideological, bar association review of a candidate's qualifications helped to insure a truly qualified judiciary.
Our Committee on Government Ethics has also spoken to the issue of the relevance of ideology in its recent report on the financing of judicial campaigns. They urged that that there was an important difference between campaigns for judicial office and campaigns for political office because in the former case there is no ideological or political "message" to convey. A recent article in The Jurist, the publication of the Association of Justices of the New York Supreme Court, takes a different view. There, a justice of Michigan's highest court who spent about a million dollars on his campaign justified this expenditure in part based on the need to get out his message about his judicial philosophy.
Now Senator Charles Schumer and others want the Senate to explore a candidate's ideology in the confirmation process. All this raises a fundamental question: What should the Bar want to be the considerations used in nominating and confirming candidates for judicial office?
The traditional position is that judges should be selected based on their character, temperament, professional aptitude and experience. These, for example, are the factors used by our Committee on the Judiciary and those specified in the New York State Constitution to be used in the selection of judges for the New York Court of Appeals.
How, then, does judicial philosophy and ideology fit in? If we want judges who decide cases on the law and the facts and not on the basis of ideology and judicial philosophy, the answer is that a judge who believes that ideology and judicial philosophy are key must get a low score in the professional aptitude category. Likewise, a judge who is temperamentally unable to rise above his or her ideological views when deciding cases should get a low mark in the temperament category.
It is dangerous to encourage judges to decide cases and develop the law based on ideology or judicial philosophy. Judicial philosophies are either too obvious (respect for precedent; the primacy of neutral principles over outcome driven reasoning) or are too crude to accurately state the law. Consider, for example, the judicial philosophy of strict construction of statutes. There is a body of law that deals with how to construe a statute. For the most part the plain meaning must be followed and ambiguous words and phrases must be construed in accordance with the purpose of the legislature. From a legal perspective, the concept "strict construction" is of no use.
Our Constitution in particular does not enact any ideology or judicial philosophy. It is a practical legal document that sets the rules for the operation of our representative federal government and specifies the rights of the people that Congress and the Executive are bound to respect. The amendments to the Constitution that were adopted in the wake of the Civil War require states to respect federal constitutional rights too.
What are we saying when we ask a candidate for judicial office about his or her ideology in connection with the enforcement of the Constitution? We are saying that ideology is relevant to the interpretation of the Constitution. We are saying that whether the constitution bars the death penalty or protects a right of privacy or allows the use in criminal trial of illegally seized evidence depends in part on the ideology of the judge.
For judges, however, these questions are legal and not ideological questions. To answer them requires legal skill and knowledge of the law. For example, I may oppose the death penalty on ideological and moral grounds but that doesn't help me decide whether our Constitution allows the state to take a life with due process of law. My ideological, moral and religious view of when human life begins will not help me decide the legal question whether a human embryo is a person within the meaning of the Constitution.
It would of course be interesting to have a candidate for judicial office tell the President or the Senate how he or she will decide hypothetical cases. And if they were reluctant to answer the question directly, it would be interesting to have a conversation about judicial philosophy that might effectively convey the same information. Both lines of inquiry are ethically unsound because they, in appearance and reality, seek to commit a judge to an outcome in return for a nomination or a vote for confirmation.
Out on the campaign trail I have heard candidates for civil court say they are "pro tenant." Such statements demonstrate a lack of the temperament and professional aptitude needed to be a judge. So too do suggestions by judicial candidates that they will turn the tide in favor of law enforcement.
The Executive and the Senate do have a legitimate need to know whether a candidate for judicial office will decide cases on the law and the facts rather than follow the dictates of politics, ideology and judicial philosophy. This is best done by examining judicial writings, or if the candidate has not been a judge, by looking for a love of and commitment
to the law as a command to be followed even at high cost of personal inclination.
Beyond this, those who are considering interrogating candidates for judicial office about their ideology and judicial philosophies should reconsider. This further politicization of the judicial selection process could do real damage to the Rule of Law.