Judicial Selection: A Pragmatic Approach
Haden, Ed R., Harvard Journal of Law & Public Policy
When former President Eisenhower was asked if he made any mistakes during his Presidency, he exclaimed, "Yes, two, and they are both sitting on the Supreme Court." (1) He was referring to Chief Justice Ear] Warren, a Republican, and Justice William Brennan, a Democrat. These men embraced a nontextualist jurisprudence under which statutes and executive actions are upheld or struck down based on their compliance, or lack thereof, with the judges' sense of social justice(2) This jurisprudential approach often placed the Warren Court at odds with the legislative policy agenda of the Eisenhower and later Republican Administrations. In contrast, the Rehnquist Court has embraced a more textualist jurisprudence under which statutes and executive actions are upheld or struck down based on their compliance, or lack thereof, with the text and original intent of the Constitution.(3) This jurisprudential approach has at times placed the Rehnquist Court at odds with the Clinton Administration.
These different judicial philosophies, when employed by up to four new appointees to the Supreme Court and hundreds of appointees to lower federal courts, will leave a long-term imprint on the viability of the Constitution's meaning and the distribution of practical policy-making power among the three branches of the federal government and between the federal and state governments. More immediately, the new President's judicial selections and the philosophies these judges employ on the bench will directly impact the short-term survivability of his legislative agenda. Current razor-thin margins on a few key constitutional issues place the viability of several major legislative proposals in jeopardy of being struck down by the courts if new members of the federal judiciary apply nontextualist jurisprudence.
Although numerous articles discuss the divergent philosophical approaches to judging,(4) this essay takes a more pragmatic view by: (1) outlining the impact of nontextualist versus textualist jurisprudence on the legislative initiatives of the new President; (2) providing practical advice on how to select nominees with a textualist judicial philosophy; and (3) discussing how to get these nominees confirmed.
Legislative initiatives on faith-based social programs, school choice, campaign finance, and criminal justice reform, are currently sustainable by slim majorities on the Supreme Court in Establishment Clause, Free Speech Clause, and Commerce Clause cases. The new President can best predict a candidate's future votes to uphold or to strike down his legislation by employing a team of legal experts to determine if the candidate has established a proven record of advancing a textualist philosophy in which the candidate's ego is vested. The new President should then balance a candidate's legal philosophy against the practical politics inherent in the confirmation process. To maximize chances of a successful confirmation, the new President should be especially careful to conduct thorough background checks, to develop a pool of potential nominees before vacancies arise, and to utilize experienced political advisors to assess each candidate's confirmability amid the shifting winds of Senatorial politics.
I. THE STAKES ARE HIGH
The next President's judicial nominations will dramatically impact his long-term constitutional legacy and his short-term legislative agenda. These nominations will likely determine whether the Constitution will be applied based on the text of the document that the people's representatives ratified and the intent of the Framers who wrote it, or based on judicial perceptions of contemporary, perhaps transitory, popular views of social justice.(5) The power to determine social policy will either be vested in the people's elected representatives, with clear textual boundaries for congressional and presidential action, or shared between those representatives and the courts by means of unclear and shifting boundaries for congressional and presidential action. …