The Constitution as the Playbook for Judicial Selection

By Hatch, Orrin G. | Harvard Journal of Law & Public Policy, Summer 2009 | Go to article overview

The Constitution as the Playbook for Judicial Selection


Hatch, Orrin G., Harvard Journal of Law & Public Policy


The Federalist Society plays an indispensable role in educating our fellow citizens about the principles of liberty, a task that is both critical and challenging. It is critical because, as James Madison put it, "a well-instructed people alone can be permanently a free people." (1) The ordered liberty we enjoy is neither self-generating nor self-sustaining, but is based on certain principles that require certain conditions. Knowledge and defense of those principles and conditions will be the difference between keeping and losing our liberty.

This educational challenge, however, has perhaps never been more daunting. We live in a culture in which words mean anything to anyone, celebrities substitute for statesmen, and people are no longer well instructed. Forty-two percent of Americans do not know the number of branches in the federal government, and more than sixty percent cannot name all three. (2) Four times as many Americans say that a detailed knowledge of the Constitution is absolutely necessary as say they actually have such knowledge. (3)Twenty-one percent of Americans believe the First Amendment protects the right to own a pet. (4)

A few factors contribute to this state of affairs. Most people get their information about the legal system only from television. Unless people sue each other or commit crimes--habits we really should not encourage--they will likely have no firsthand knowledge or experience to draw from. Furthermore, people hold lawyers in low esteem. If you plug the term "lawyer joke" into Yahoo, it returns a whopping 25.7 million hits, a number on the rise almost as fast as the national debt. The problem with lawyer jokes is that most lawyers do not think they are funny and most other people do not think they are jokes. This low view of lawyers means people have little motivation to learn more about what lawyers and judges really do.

The media do not help this state of affairs. The Harvard Journal of Law & Public Policy recently published an excellent article by Michigan Supreme Court Justice Stephen Markman, (5) who served as my chief counsel when I chaired the Senate Judiciary Subcommittee on the Constitution in the early 1980s. He describes how the media's penchant for focusing on winners and losers significantly shapes and distorts how people understand what judges actually do, often for the worse. (6)

Nonetheless, the timing of this Essay is auspicious in several respects. First, I write in the wake of two very relevant Federalist Society student symposia, last year's about the people and the courts (7) and this year's about the separation of powers. (8) Second, President Obama has been particularly clear from the time he was a candidate about his intention to appoint judges who will exercise a strikingly political version of judicial power. (9) Third, he has already started acting on that intention by making his first judicial nominations. (10) New Presidents typically make their first judicial nominations in July or even August, yet the Senate Judiciary Committee has already held a hearing on the President's first nominee to the U.S. Court of Appeals, and the President sent two more nominees to the Senate just a few days ago.

Mark Twain popularized the notion that there are three kinds of lies: lies, damned lies, and statistics. (11) I prefer Senator Daniel Patrick Moynihan's comment that you may be entitled to your own opinion, but not your own set of facts. (12) Either way, I will statistically describe two macro and two micro factors of the judicial confirmation process to show its recent transformation before turning to how it should be conducted going forward.

The two macro factors are hearings and confirmations. The Judiciary Committee held hearings for fewer judicial nominees during the 110th Congress than any Congress since before I entered the Senate. This lack of hearings is not the result of the Judiciary Committee's inability to multitask. …

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