Newswise — The political process surrounding judicial nominations isn't a bad thing, according to Professor of Law Charles Geyh, as long as the tools that provide for consensus and compromise aren't used instead as weapons to destroy the process. "Republicans who advocate nuclear blasting of judicial filibusters and Democrats who make weapons of the tools that support minority rights threaten to destabilize a process that has worked quite well for two centuries," he said. In his forthcoming book "When Congress and Courts Collide," Geyh notes that there are generational cycles throughout American history when courts and the Congress go at it "hammer and tongs," and there is a great deal of finger-pointing and belly-bumping as each side tries to assert its power. But, he adds, those cycles are separated by lengthier intervals when each side has developed norms that respect the judiciary's independence and help the branches peacefully coexist. He said, "Over time, Congress abandoned efforts to control judicial decisions by impeaching unpopular judges, packing unpopular courts with new judges or stripping courts of jurisdiction to hear unpopular cases. For over a century, the appointments process has been the best way for the political branches of government to ensure that judges are going to be politically acceptable to the public they serve. If we take the rule of law seriously, it is preferable for the president and Senate to control who becomes judges than for Congress to control the decisions judges make once they are appointed." While there are factions who assert that judges systematically ignore the law, 79 percent of the public disagrees, as does Geyh. "No judge is perfect, but as a group, judges do their best to uphold the law as they construe it to be written and should be permitted to do their jobs without threats or intimidation," he said.
Although some Republicans are claiming that a judicial nominee's views are not fair game for senators, the Reagan administration believed otherwise, according to Professor of Law Dawn Johnsen, who served as acting assistant attorney general under President Clinton. Today, prominent Republicans criticize Democratic senators who consider the judicial philosophies and legal views of President Bush's nominees. But Johnsen said, "Several documents prepared by President Reagan's Department of Justice from 1986 to 1988 flatly contradict the current Republican line about disregarding nominees' views and philosophies." She cited the report "The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation," which states that nominees' views on particular legal issues are critical, not just for the president, but also for the Senate. Johnsen said the report suggests that the use of ideology in judicial selection was a deliberate conservative strategy to change the way courts interpret the Constitution. It was a strategy pursued with stunning success on some issues, and future judicial appointments will determine whether the courts implement the conservative vision on other issues, she said. "The Rehnquist court has invalidated more federal statutes than any other Supreme Court since the early 20th century, including laws to protect rights of the disabled, women and older workers. And, of course, the Rehnquist court played a direct role in resolving a presidential election in a way that would likely lead to a strengthening of the court's new direction. The suggestion that the Senate should not carefully review nominees' legal views represents the next stage in Republicans' efforts to transform the federal judiciary," she said.
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