The confirmation hearings for Judge Gorsuch are playing out for the world to see. While the decision whether to confirm Judge Gorsuch may seem like a distant event, it has an impact on all of us. We might consider the obvious impact of the decisions that Gorsuch will make if he is confirmed,, but there is another more profound and disturbing impact that is being felt, even as the questioning continues.
The impact of these confirmation hearings is a continuation of the impact of political pressure on the judicial branch of government. That political pressure is not a new thing. Some might wonder why anyone would even bring it up. Most people are likely to believe that the judicial branch is as political as the executive and legislative branches of government, but that is exactly the problem. It shouldn't be!
The reason that the judicial branch should be not “politicized” begins with the Separation of Powers doctrine. The idea of separation of powers is an integral, foundational component of our US Constitution that was borrowed by the framers of our Constitution from Charles-Louis de Secondat, an 18th century French social and political philosopher, whose publication, Spirit of the Laws, is “considered one of the great works in the history of political theory and jurisprudence” and inspired our own Declaration of Rights. (See the National Conference of State Legislators)
Our freedom is dependent on protecting and preserving not only the separation of powers, but the independence of the judiciary. Thomas Hobbes knew how important protecting and preserving independent branches of government was when he said that “freedom is political power divided into small fragments”; and Woodrow Wilson knew this when he said “concentration of power is what always precedes the destruction of human liberties”. (See the Waning and Waxing of Federalism by Bruce Fein in the ABA Journal, the Lawyer's Magazine (January 1, 1986) p. 118).
The independence of the judicial branch is of primary importance, as it stands as a check against the other two branches of government. Sam Ervin, Jr. calls judicial independence ” the strongest safeguard against the exercise of tyrannical power by men who want to live above the law” and “perhaps the most essential characteristic of a free society”. (Separation of Powers: Judicial Independence published in the Duke Law Journal)
Article III of the US Constitution grants federal judges lifetime tenure as a means of promoting the independence of the judiciary. (Why Do Federal Judges Have Life Tenure?) Life time tenure lessens the possibility that judges will be intimidated when making unpopular decisions. It also lessens the impact of political pressure so that judges can rule on the basis of established law and legal principles, free from the expediency of partisan politics.
Judges are not free from all constraints. They must “conduct themselves well” according to Article III of the US Constitution. They must meet the standards of ethical conduct established in the Code of Conduct for United States Judges. Judges must withdraw from cases in which they have personal bias or animus and must file annual financial disclosures. Judges must conduct themselves with integrity, act honorably, avoid impropriety and even the appearance of impropriety, and perform their duties fairly, impartially and diligently.
Among other things, the judicial Code of Conduct forbids judges from engaging in political activity. Judges cannot be political leaders or hold political offices. Judges cannot make political speeches for a candidate or political organization. Judges cannot publicly endorse or oppose a candidate for political office. Judges cannot solicit funds for or make contributions to a political candidate or organization. Judges cannot even purchase tickets for a political dinner or event. Judges cannot engage in any political activity.
These prohibitions in the Code of Conduct for judges are all aimed at keeping judges out of the political fray and separating them from political influences so that they can do their duties independently as the Constitution and law require. Yet, judicial appointments are dripping with political motivations and judicial confirmation hearings are openly and blatantly political.
Anyone listening to or watching the Gorsuch hearings would have a hard time realizing from the hearings alone that judges are not (or should not be) political. Every question is pregnant with political nuance, and every non-answer (because judges should not be making political statements) is met with a politically laden soliloquy packed with partisan innuendo and bombast.
One might conclude that never is the independence of the judiciary more threatened than in the appointment and confirmation process.
This is was not always the case. According to Nina Totenberg, of NPR fame, Robert Bork's Supreme Court nomination changed everything. “The nomination changed everything, maybe forever,” says Tom Goldstein, publisher of the popular SCOTUSblog, which extensively covers the Supreme Court. “Republicans nominated this brilliant guy to move the law in this dramatically more conservative direction. Liberal groups turned around and blocked him precisely because of those views. Their fight legitimized scorched-earth ideological wars over nominations at the Supreme Court….” And so… the saga continues to this day, as evidenced by the Gorsuch hearings.
While the politicization of Supreme Court (and lower court) nominations is our legacy over the last 30-50 years, the precursors to that legacy are, ironically, embedded in the very independence that current circus threatens to undo. Earl Warren was appointed to the Supreme Court by Republican President, Dwight D. Eisenhower. Warren was the moving force for Japanese internment during WWII as Attorney General. He was elected Governor of California on the Republican ticket. He was the nominee of the Republican Party for Vice President in 1948, running with presidential nominee, Thomas Dewey. He was even a member of The Gun Club secret society in college.
This is where things get interesting. With all those conservative credentials, appointed by a conservative President, Warren proved that judicial independence “works”. Earl Warren presided over a Supreme Court that made, perhaps, the most progressive decisions in the history of the United States, protecting and advancing individual rights and freedoms like no other court in history. Brown v. Board of Education banned segregation in schools. Gideon v. Wainwright ensured that criminals would receive publicly funded attorneys. Engel v. Vitale outlawed school prayer. Griswold v. Connecticut guaranteed a right of privacy.
There are other examples of judicial independence, such as Felix Frankfurter, who opposed Earl Warren on his progressive influence when Warren was first appointed. Frankfurter founded the American Civil Liberties Union (ACLU) and was appointed by progressive President, Franklin D. Roosevelt, who stacked the court with “liberal” judges. Only Frankfurter turned out to be a champion of judicial restraint, like the late Anton Scalia who Gorsuch would replace. Frankfurter opposed Earl Warren's bent to protect individual rights and liberties. Only when Frankfurter left the bench did Warren have a majority that made his progressive decisions possible.
The lesson in all of this is that politics should not be involved in judicial appointments because our judiciary is designed to be unchained from political persuasion. As a point in fact, judicial appointments have proven, over and again, that judicial independence “works” (to the extent that “liberal” decisions have been influenced by conservative appointments and “conservative” decisions have been influenced by liberal appointments). The extreme degree to which the appointments have been politicized since the Bork era, however, threaten to undermine and undo that judicial independence that is so vital to the protection of our freedoms in this constitutional republic we call the United States.
Political expediency is a threat to the long term stability and integrity of the system of government we have that is built on the platform of the separation of powers. The linchpin in that platform is judicial independence.