Judicial selection: a pragmatic approach.

• Author: Haden, Ed R.

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.

1. 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.

   The practical allocation of policy-making power depends, in large part, upon the federal courts' employment of textualist or nontextualist methods of interpreting the Constitution and statutes. The interpretive approach, or judicial philosophy, of the new President's judicial nominees will impact whether his legislation will be upheld or struck down by the federal courts. This impact will be almost immediate because much of the new President's legislative agenda depends on critical precedents interpreting the Establishment Clause, the Free Speech Clause, and the Commerce Clause that derive their current support from slender textualist majorities on the appellate courts.

   For example, if the new President wishes to expand the use of faith-based social programs or to encourage States to adopt school choice programs that may include religious schools, he should assess how his judicial selections will impact the federal courts' Establishment Clause jurisprudence. In Bowen v. Kendrick,(6) the Supreme Court, by a 5-4 vote, held that a federal grant program that utilized secular and religious organizations to provide teen pregnancy counseling did not violate the text and original intent of the Establishment Clause. In Mitchell v. Helms,(7) a four-vote plurality maintained that broad government aid to private schools, including religious schools, does not violate the text or original intent of the Establishment Clause as long as the aid is offered on a neutral basis and is secular in content. How the new President's judicial nominees, especially his Supreme Court nominees, impact the current razor-thin margin on the Establishment Clause will determine whether he delivers on promises to allow religious organizations to help the inner city poor and to allow parents to choose where their children attend school.(8)

   If the new President wants campaign finance reforms to cap both union and non-union political contributions or spending, he should assess how his judicial selections will impact the federal courts' First Amendment jurisprudence. In Nixon v. Shrink Missouri Government PAC,(9) the Supreme Court, by a 6-3 vote, held that certain narrow limits to campaign financing were permissible under the text of the Free Speech Clause. How the new President's nominees impact the current two-vote margin on the Free Speech Clause will determine his ability to shape or resist broad campaign finance reforms that do not include limits on union collection of political contributions from members' payroll checks.(10)

   If the new President seeks to reform the criminal justice system, he should assess hew his judicial selections will impact the federal courts' Commerce Clause jurisprudence. In United States v. Morrison,(11) the Court, by a 5-4 vote, held that federal legislation that dealt with civil lawsuits regarding noneconomic activity-rape--was invalid because such activity was not within the text and original intent of Congress' power to regulate interstate commerce. Although the federal government can still make grants to alleviate the harm caused by such noncommercial activity, it cannot regulate the activity directly. How the new President's judicial nominees impact the current slim margin on the Commerce Clause will determine his ability to shape criminal justice legislation, to avoid substantial increases in the number of federal crimes, and to deliver on promises to protect families.

   Similarly, if the new President plans to pass legislation dealing with tough sentences for drug dealers who sell to school children, (12) legislative redistricting,(13) partial birth abortion and parental notification,(14) or character-based education programs,(15) he should carefully consider whether his judicial nominees will employ an interpretive approach more or less likely to uphold these legislative initiatives. Although it would be improper to ask how a candidate would vote in a particular case, it is not improper to assess a candidate's jurisprudential approach, or legal philosophy. The judicial philosophies employed by the new President's nominees when interpreting a variety of constitutional and statutory provisions will determine whether the new President's campaign promises are effectively kept ... or not.

2. ASSESSING A CANDIDATE'S LEGAL PHILOSOPHY

   To increase the likelihood that his legislation will be upheld by the courts, the new President should select nominees that share his judicial, or legal, philosophy. Although Supreme Court and circuit court nominees should receive closer scrutiny, district court candidates should not be overlooked. They, after all, will form a substantial part of the pool from which the appellate nominees of tomorrow may be selected. History has shown the best predictor of how a candidate will vote once confirmed is not merely loyalty to the President, home-state Senators, or a political party, but a proven record of consistent application of a legal philosophy in which the candidate's ego is vested.

   1. The Shortcomings of Political Loyalty

      It is naive to suppose that nominees will be selected by politically accountable decision makers in a merit-based vacuum, wholly devoid of politics. A nominee's relationship and record of service to the President, to his home state Senators, and to his political party often brings his name to the attention of the nomination and confirmation decision makers in the first place. These politicians owe their past election and future re-election to various interest groups that want favors, including judicial appointments. Yet, as explained above, the subsequent votes of judicial nominees on the President's legislative agenda can impact his re-election prospects. With this stark back-end political reality in mind, the new President should carefully consider how much weight to give politics alone on the front end.

      In particular, picking Justices based on politics alone can cause problems--many Justices who were nominated...