The Case for Borking
RANDALL KENNEDY IN "THE Case for Borking" [July 2-16, 2001] is right to question the existence of a "golden age" in which judicial selection and decision making were entirely "uncontaminated by politics." Presidential nominations of judges are acts of high political, indeed constitutional, importance, as are Senate responses.
Yet it is too easy to suggest that "everything is politics" when evaluating judges. The ideal judge is an individual who critically examines the facts and law of individual cases without being unduly swayed by preconceptions, however "political" the issue under consideration. A judge's values and philosophies can inform judgments in hard cases. That is why it is important to make inquiries about such matters during the nomination-and-confirmation process. While we expect a judge to try to transcend the limits of his or her bias, background, or predilections, the acknowledgment that an individual cannot always do so is an appropriate basis for opposing a particular candidate.
Moreover, it is not correct that posing any question is legitimate. While Kennedy dismisses a candidate's refusal to answer questions as a dodge, in some cases a response requires prejudging a matter that may come before the person as a judge. A broad-based, nonpartisan Task Force on Federal Judicial Selection assembled by the Constitution Project, for which I was the reporter, underscored last year that refusing to prejudge cases is a matter of principle. Such refusal is an important protection of the federal judiciary's independence. This principle should not be undermined by the claim that "everything is politics" and therefore "all is fair game" for a probe by the president or the Senate.
THOMAS O. SARGENTICH
Professor of Law
Washington, D. C.
THE RESULT OF FOLLOWING Randall Kennedy's advice would be a federal bench far more ideological than the one we have now. Although it's naive to think that politics can be removed from the judicial-selection process, Kennedy goes too far in the other direction by demanding that nominees answer senators' questions on virtually any topic.
When the Senate was in Republican hands under a Democratic president, our bipartisan task force agreed that having federal judges who had already taken positions on a range of controversial issues would undermine both the reality and the perception of an independent judiciary. These former public officials and scholars from both parties agreed on a neutral set of principles when Selecting federal judges: (1) Candidates should be committed to deciding cases based upon law and the facts of the case and should renounce ideological commitments; and (2) judges should be nominated and confirmed based upon experience, qualifications, temperament, character, and views of the law and the judicial role. The fairest approach best protects everyone's interests in the long run.
The Constitution Project
Globalism and Its Critics
YOUR EXCELLENT SUPPLEment "Globalism and Its Critics" [July 2-16, 2001] had one very important omission: There was no mention of the efforts to extend U.S.-style patent-and-copyright protection throughout the developing world through TRIPS (Trade-Related Aspects of Intellectual Property Rights) and other commercial agreements. This is an important issue in its own right but also because it reveals something about globalization.
The importance of patent protection is readily apparent to anyone aware of the AIDS tragedy unfolding in sub-Saharan Africa and other low-income countries. More than 36 million people in the developing world are HIV positive, and the number is rising rapidly. While general poverty and lack of infrastructure in some areas would make treating AIDS patients difficult nonetheless, there are still millions whose lives can now be saved with drug treatment. …