Pundits across the political spectrum have debated whether the Senate should have proceeded with the confirmation of Justice Amy Coney Barrett. Liberals point to the refusal of Republicans to even consider President Obama’s nominee, Merrick Garland, months before an election and the fact that no nominee has been considered so close to an election. Republicans have shrugged off these arguments, maintaining the Constitution does not prohibit eleventh hour appointments and that they (and the President) have a mandate to appoint conservative judges to the federal bench.
These arguments miss that the confirmation process itself is flawed, regardless of whether it occurs on the first day of a president’s term or last. These flaws reflect deep-seated features of judicial legitimacy and an unwillingness of elected officials to reveal the realities of judicial policymaking. The result? A phony process that features a carefully choreographed dance around information the public deserves to know.
To understand this woeful state of affairs, you need to first understand why judges are determined to avoid meaningful testimony. According to Martin Shapiro, one of the giants in the field of legal studies, the legitimacy of the courts rest on a simple social logic. When individuals cannot resolve disputes, they naturally turn to a third party. Shapiro calls this the “logic of the triad.” (Imagine a three-legged stool featuring two litigants and the judge, each holding up the structure.)
The problem, Shapiro notes, is that this triadic relationship is inherently unstable. As soon as judges decides, the triad collapses in the eyes of the loser and becomes two-against-one. (Kick out one leg of the stool, and it falls.) This tension cannot be resolved; it can only be managed. The law tries to prop up the logic of the triad in a number of ways. In Roman law, parties had to consent to both the rules and substantive standards for resolving a dispute prior to adjudication. (It is harder for the loser to cry foul when they picked their legal poison.)
In representative democracies, citizens do not consent to laws prior enactment. They elect representatives to make the laws and most of us have no idea what many laws say. (When is the last time you read the Tax Code? Federal pension laws? Consumer safety laws?) Here, judges can bolster the logic of the triad by calling on the ideal of the rule of law and insist they are merely applying the laws as written. In so doing, judges are “neutral arbiters of the law” and not taking sides arbitrarily. This is the essence of Justice Roberts’ now famous testimony at his confirmation hearings about being an umpire who simply calls balls and strikes. (Sports analogies to umpires and referees are now clichés in the lexicon of the confirmation process.)
This, of course, is mostly fiction, especially with respect to the Supreme Court. Don’t get me wrong. As a former lawyer, I know many areas of the law are settled and routine cases abound. In these cases, judges come close to being referees. But the cases that reach the Supreme Court are not routine. Indeed, the rules for granting certiorari—the rules that govern which cases the Court chooses to hear–encourage the taking of cases where the law is unclear, the lower courts are divided and/or stakes are high. In these cases, the Court must decide how to define the strike zone before calling balls and strikes. It is hard being a neutral arbiter when you make the rules and apply them.
That is not to say that the Supreme Court decision-making is always lawless. When the governing statutes or constitutional provisions are unclear, justices often look to general legal principles to guide their decisions. But these principles are open-ended and defy mechanical application. Naturally, justices’ political and policy preferences will inform how they interpret these principles. Under these circumstances, it is not surprising that decades of careful research shows that the best predictor of Supreme Court justices’ votes is their political ideology. That is why it is so important for elected officials to press for straight answers from nominees about their politics and policy preferences.
Why don’t Senators do this? They certainly could. They could refuse to confirm any nominee who dodges questions about where they stand on key issues. Senators could also do more to educate the public about the inevitability of judicial policymaking and the extensive research that connects justices’ ideologies and votes.
Their failure suggests that the fiction of judges-as-neutral-arbiters obscures some uncomfortable political realities. One possibility is that the Senators know—perhaps better than anyone—just how partisan and cumbersome the legislative process has become. Legislative gridlock creates policy-making vacuums, which political appointed judges are likely to fill. This creates additional urgency to pack the courts with like-minded judicial allies.
Even more cynically, Senators have strong incentives to pass vague laws, which leave tough choices to federal judges who do not face voters. In this way, they can claim credit for passing legislation, while shifting blame to judges (and ever-unpopular lawyers) for any problems during implementation. Judicial policymaking has a further advantage of being off budget—a form of privatization that places the costs of policymaking on individual litigants. Senators on both sides of the aisle may be reluctant to reveal too much about these political realities, preferring to bemoan “activist” judges while appointing them.
Several simple lessons flow from the convergence of judicial and senatorial incentives to pretend that the Supreme Court does not make policy. First, the confirmation process will continue to fail to do its most important job: reveal and discuss nominee’s political and policy preferences on important constitutional issues. Second, presidents will seek relatively young nominees, so that they have less of a “paper trail” to reveal their preferences and more time on the Court to exercise them. Finally, expect more and perhaps escalating political hardball with the nomination process. The stakes are too high to let the niceties of Senate norms get in the way of populating the Court with like-minded policy-makers, who happen to wear black robes (and wear them for life).