Judicial Appointments: What's on Tap from Obama or McCain?

By ROBERT A. LEVY
Thursday, Oct. 02, 2008

Privacy, wartime executive power, racial preferences, abortion, property rights, cloning, gay marriage, school choice, the death penalty, gun control - just a few of the hot-button issues that the federal courts will likely address over the next four years. That's why judicial nominations are vitally important. Presidents George W. Bush and Bill Clinton were each able to reshape the federal judiciary, filling more than 300 slots apiece, including more than 60 appellate judgeships and two Supreme Court seats. Because federal judges have a momentous impact on law and society, voters need to know what they can expect from Barack Obama and John McCain.

Let's start with McCain: He has pledged to nominate judges like Bush's two appointees, John Roberts and Samuel Alito, who "understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power." So far, so good. No reasonable person would deny that limited federal government and separation of powers were two of the Framers' foundational principles.

But McCain plans to employ two guideposts that may be incompatible with his professed goal to rein in federal power. First, he expects to appoint "strict constructionists"; second, they must believe in "original intent." Perhaps McCain meant to say he'll appoint "originalists"; but that's not what he said, and terminology is important.

Originalists interpret the Constitution in accordance with its meaning when the underlying textual provisions were ratified. Sometimes originalists are called "textualists" because they assign great importance to the words actually in the Constitution. As the term implies, originalists insist that the text be interpreted as it was originally understood by those who first wrote and read it - not the meaning that would necessarily be derived from a modern reading of the text.

Originalism is not, however, synonymous with "original intent" - a distinct interpretive tool, supposedly favored by conservatives, that focuses on the values and objectives of the drafters and ratifiers when they enacted a particular provision. As Justice Antonin Scalia has written, "It's the law that governs, not the intent of the lawgiver." The difficulty in applying original intent is that it begs several questions: Which drafters or ratifiers are authoritative? How do we know their intent? How are differing views among the drafters and ratifiers to be resolved?

Original intent does, however, play a subordinate role for textualists. Basically, if the original meaning of the text is unambiguous, textualists adopt that meaning unless it would lead to absurd consequences. But if the meaning is unclear, textualists will consult the structure, purpose, and history of the Constitution. Structure relates, first, to the internal relationship among the various provisions of the Constitution and, second, to the overall design or framework of government that the Constitution establishes. Purpose is discerned from the intent of the drafters and ratifiers. History involves the law or practices that preceded enactment, as well as early post-enactment interpretations.

Just as textualism is not the same as original intent, neither should it be equated to strict constructionism. Justice Hugo Black, for example, was a First Amendment strict constructionist. He argued that the First Amendment's mandate - "Congress shall make no law" infringing on speech, religious exercise, and other protected freedoms - must be construed literally: On one hand, the term "no law" permitted no exceptions; on the other hand, the term "speech" did not extend to conduct such as flag burning. Neither view reflects the Supreme Court's current position.

Strict constructionism is often identified with more conservative legal scholars. Yet Scalia has carefully distinguished it from his own preference for textualism: "Strict constructionism … is a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be…. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means."

Obama has an entirely different perspective. His spokesman, Tommy Vietor, stated that Obama "has always believed that our courts should stand up for social and economic justice." Indeed, Obama has said he wants justices who have "the empathy to recognize what it's like to be a young teenage mom," or to be gay, poor or black. Many liberal legal scholars agree, although they use other labels as synonyms for empathy and social consciousness.

The editors of the New Jersey Lawyer, for example, want judges to issue decisions that reflect the "felt necessities of the time." In a July 2008 editorial, the NJL criticized the recent Supreme Court gun decision, District of Columbia v. Heller, not because it misinterpreted the Second Amendment, but rather because "gun violence plaguing our nation's cities is, in a word, deplorable.... [G]overnmental gun control is needed now more than ever." In response, one reader wondered whether the editors would endorse "conservatives who might find among the 'felt necessities of the time' a reason to restrict reproductive rights." Another reader asked whether the editorial board would have judges "prohibit the free exercise of religion by Muslim citizens because of recent acts of terrorism." Evidently, one person's "felt necessities" are another person's despotism.

Among the foremost proponents of felt necessities is Justice Stephen Breyer, who embraces the so-called living Constitution theory. He and his allies, including Obama, want the Constitution to be interpreted in light of new circumstances - a malleable document that can be adapted to current societal demands. Breyer described the living Constitution as one "designed to provide a framework for government across the centuries, a framework that is flexible enough to meet modern needs." Our constitutional system, says Breyer, requires "structural flexibility sufficient to adapt substantive laws and institutions to rapidly changing social, economic and technological conditions."

Textualists respond that the Framers provided an amendment process for "structural flexibility." If the Constitution needs to be updated, it should be accomplished by amendment, not by pretending that the written document doesn't mean what it says. Indeed, what is the purpose of a written document if we act as though it does not exist? Instead of following the steps carefully laid out in Article V to amend the Constitution, the Court's liberals have invoked their notion of a living document - treating the Constitution as if it empowered the federal government to regulate anything and everything while redistributing private resources from anyone to anyone else.

That cavalier attitude toward government powers can lead directly to the same attitude toward individual rights. "If powers can be expanded with impunity, so too can rights be contracted," observes Cato Institute constitutional scholar Roger Pilon. "In fact," he continues, "a 'living constitution,' interpreted to maximize political discretion, can be worse than no constitution at all, because it preserves the patina of constitutional legitimacy while unleashing the political forces that a constitution is meant to restrain."

Indeed, one major reason for the broken judicial confirmation process is the Court's gradual shift from reliance on the text to reliance on a living Constitution. When the text of our written Constitution is trumped by evolving societal needs, then the judicial function is just politics by another name. No wonder Congress and activist groups are so concerned about a nominee's views on key public policy issues; those views could ultimately become law, notwithstanding explicit constitutional provisions to the contrary.

If you like the notion of a living Constitution that can be bent to reflect subjective judgments about felt necessities, then Obama's judicial nominees will be your cup of tea. If you prefer originalists who are anchored by the written text of the founding documents, then McCain's nominees - assuming he drops his mistaken allegiance to strict construction and original intent - are more likely to fill the bill. In either case, the Senate must ferret out that distinction during the confirmation proceedings. If the nominee is a textualist, senators can anticipate that his or her jurisprudence will be objective and grounded in the Constitution, not based on personal preferences. If, however, the nominee believes that empathy and social consciousness are paramount, then the dysfunctional confirmation process of recent years will persist as senators are compelled to unearth the anchor-less beliefs of the nominee on a wide range of public policy issues.


Robert A. Levy is chairman of the Cato Institute and co-author of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom (Penguin-Sentinel, 2008), on which this article is based.

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