Ideology and the courts

Posted: Aug 01, 2003 12:00 AM
A learned attorney expresses his dismay over the logjam in the matter of judicial nominations. There are, at the moment, 77 vacancies, a whopping 27 in the critical courts of appeals. Only 20 of the nominees for these judgeships have yet had hearings before the Senate Judiciary Committee. The Republican majority in the Senate isn't great enough to cope with threatened filibusters. The breakdown is, of course, political.

The observer I write of is a liberal, even though he is very bright and has been extensively educated (Yale, Rhodes scholar, Supreme Court clerk). What brought him to utter despair was the nomination a fortnight ago of Janice Rogers Brown to the D.C. Circuit Court of Appeals. What is wrong here, in his view, is the following:

  • The D.C. Circuit is the second most influential court in the United States. Its decisions are often if not themselves dispositive, way stations to the Supreme Court on constitutional issues. An ill-advised nomination to a relatively obscure court of appeals is less damaging, potentially, than a nomination to this court.

  • Ms. Brown's deliberative qualifications are inconspicuous. She sits now on the California Supreme Court, where she has done nothing of note. Before that she was legal affairs secretary to Gov. Pete Wilson. There she exercised administrative responsibilities and served as legal liaison between the governor's office and the executive departments. Before that, she practiced law, specializing in transportation and housing.

  • She has ruled against affirmative action and against abortion rights.

  • Ms. Brown is an African-American. She would be the third woman appointed to the Supreme Court, if she traveled from the D.C. Court upstairs, that being the implicit logic in her nomination. To filibuster against a black woman would test the mettle of the hardiest liberal, leaving us with a journey undertaken that would land an(other) ideologue on the Supreme Court of the United States.

    Now the point the critic here makes is sophisticated. He uses the term "ideologue" as pejorative. And in this, in the judgment of many conservatives, he is correct. The late scholar and author Russell Kirk scorned the ideologue, as did the political philosopher Eric Voegelin. For them, as for many other conservatives, the ideologue refuses to sway from his adamantine course by taking into account experience and reason. By such rigidity, if shown in assessing judicial questions, he becomes something of an automaton, and the court becomes a sorting house of conflicting automatons, and the judicial spirit atrophies.

    Now the argument against ideologues is raised at a moment in the Supreme Court's history in which the term "judicial activism" is invoked often to cloak sheer ideological orthodoxy. The most illuminating example here is abortion.

    There are those -- in sheer scholarship, the commanding presence -- who do not believe that the decision of the Supreme Court on abortion in 1973 was legitimately sanctioned by the Constitution. So: Believing such a thing -- that Roe v. Wade was wrong -- how does a judge rule on derivative questions?

    The late Justice Hugo Black was an ideologue. He held that the First Amendment denied to Congress the right to abridge speech, over and out -- and therefore libel laws were unconstitutional. But of course that, as Michael Oakeshott counseled us, is to reason as the crow flies.

    My exercised friend believes that ideologues dispatched to the Supreme Court arrive without the disposition, or perhaps even the capacity, to reason productively, and are agents of polarization. This is clearly true of ideologues on the opposite side of the abortion question from Ms. Brown, who reject any modifications on the abortion front that could be held to modify, and therefore to imperil, the basic right to abort.

    President Bush would argue that he wants not ideologues but conservatives -- and these call themselves originalists -- to deflect the left's ideological rigidities. The conflict again arises with Miguel Estrada, superbly qualified by every measurement in the legal counting house. And here we have not a black woman, but a Honduran-born star who blazed a path through all the auxiliary chambers of legal learning.

    But, says my friend -- Estrada is a right-wing ideologue. And he has been named because he is a Hispanic. His confirmation would enhance the ideological composition of the D.C. court. And that, my friend insists, is bad for liberals and for conservatives.