Judicial Power and American Character: Censoring Ourselves in an Anxious Age.

• Author: Graber, Mark A.

Judicial Power and American Character is a thought-provoking book that often provokes the wrong thoughts. Robert F. Nagel deftly portrays the pathologies of a legal culture(3) that can neither endorse in theory nor deny in practice the political nature of judicial review. That culture is indicted for failing to examine the actual consequences of legal doctrines, engaging in any abusive practice necessary to retain control of the judiciary, holding the American people in contempt, and ignoring valued, but inarticulate, political traditions. Nagel makes a strong case for each count. Unfortunately, his examples implicitly lay the blame for these contemporary judicial vices almost entirely at the door of liberal jurists and scholars.(4) As a result, rather than further common efforts to improve the quality of political and legal discourse, the rhetoric of Judicial Power may promote complacency on the right and recriminations on the left. Moreover, by identifying, often correctly, the defects of only one side to a political struggle, Nagel overlooks the ways in which questionable liberal claims and behaviors are responses to questionable conservative claims and political behaviors.

Nagel's discussion of how elite professorial attitudes warped the Bork hearings demonstrates the power of his cultural eyesight and exposes substantial deficiencies in the contemporary judicial confirmation process. Rather than side with either Robert Bork or his critics, Judicial Power documents the common ground that unites academic originalists and non-originalists. Some commonalities concern tone. "A very large number of law professors," Nagel observes, "criticize uninhibitedly, and generally write with a degree of authority to which we are not entitled."(5) As a result, the stakes in the Bork hearings were artificially inflated because the academic participants who engaged in those rhetorical practices too often described their rivals as radicals or extremists,(6) rather than, as would be more accurate, fellow scholars with theories that seemed, on balance, somewhat inferior to their own. More significantly, Nagel justly complains that contemporary academic writing, whether by Bork or Laurence Tribe, exhibits "an attachment to theory that subordinates the wisdom of experience and the weight of practice."(7) All parties to the Bork hearing would blithely disregard decades of legal precedent to implement their pet theories of judicial review, theories that are rarely grounded in any empirical understanding of how judicial decisions actually influence political practices.(8) Indeed, hardly any classic of contemporary constitution interpretation is informed by the substantial literature in political science which discusses the capacity of courts as social policymakers.(9)

This commitment to arcane legal reasoning has descended from the legal professorate to Congress. During the Bork hearings, Nagel points out, representatives aped (and were praised for aping) the legal academy. Rather than use the confirmation process as an opportunity to review "the actual effects of the Supreme Court's doctrines and decisions," senators asked "learned questions on textualism, judicial restraint, the place of stare decisis in constitutional law, and other matters of legal philosophy."(10) This learned practice seems astonishing given that most voters are probably more concerned with the state of their schools or crime in their neighborhoods than with the latest fad in semiotics.(11)

Nagel explains this strange proclivity of senators to behave like academics rather than persons charged with making public policy when confirming judicial nominees by noting our political culture's tendency to avoid moral discourse. "[M]any Americans," he declares, "would have found it unnerving to have their representatives openly and directly confront issues of value and consequence."(12) The rise of such movements as the Christian Coalition and feminism, however, suggest that many citizens do want elected officials to make fundamental ethical choices. The problem representatives face is that, in the absence of any clear consensus on what values the people prefer, making any decision on abortion, race or related issues may be a political loser. Hence, elected officials have special reasons not to "confront issues of value and consequence." By keeping their questions at a high level of abstraction, the people's representatives imitate statespersons while foisting off to the judiciary the responsibility for various political hot potatoes.(13)

Nagel brings his discussion of the confirmation process to a close by condemning contemporary struggles to control the federal judiciary for losing all sense of propriety. "During the Thomas hearings," he notes, "procedural fairness seemed ... [an] almost ridiculous presence patently subordinate to large political forces and objectives."(14) Such concerns with the confirmation process are widespread. Stephen Carter has similarly...