Judicial picks frequently insinuate political taint
The United States Constitution provides that federal judges “shall hold their Offices during good Behaviour,” which in practice usually means for life. That makes judicial appointments a president’s longest-lasting personnel decisions. Three judges appointed by Lyndon B. Johnson remain on the bench today.
Every administration has a judge-picking staff overseen by the White House counsel. The current counsel, Don McGahn, spoke candidly about how his judgepickers go about their business at the recent Conservative Political Action Conference. According to the Daily Caller, the conservative news website founded by Fox News host Tucker Carlson, “McGahn revealed that the White House treats judicial selection as an integral part of the deregulatory agenda.”
In his remarks, McGahn mentioned a 1984 Supreme Court opinion involving the Environmental Protection Agency that, in his view, granted too much leeway to regulatory agencies in general and the EPA in particular. He singled out for praise a 2016 opinion by then-Judge Neil Gorsuch criticizing the case. McGahn declared: “Judicial selection and the deregulatory agenda are flip sides of the same coin.”
I don’t think he meant to imply Gorsuch was elevated to the Supreme Court for the specific purpose of overruling that 1984 case. But a fair interpretation of his remarks is that his office picks judges with the expectation that, once confirmed, they will use their newly acquired power to further “the deregulatory agenda.”
McGahn’s remarks might be viewed as no more than an unusually frank acknowledgment of long-standing practice, but I think they go well beyond that. Admittedly, any detached observer would have to conclude that the quality Americans prize most highly in their judges is affiliation with the party in power, with all that implies about any new judge’s ideological leanings. Governors no less than presidents rarely make appointments across party lines. (In New Mexico, our judicial nominating commissions sometimes give our governors no option.)
But patronage politics is one thing. It’s been a staple of American public life since Andrew Jackson instituted the spoils system (“to the victor goes the spoils”). Patronage distinguishes between judicial candidates based on party affiliation. That in itself makes little difference to the functioning of the courts, because the traits most valuable in a judge — honesty, decisiveness, intelligence, modesty — are pretty evenly distributed across the parties.
Picking judges based on their willingness to advance a particular political agenda is another thing altogether. It prizes a readiness to discard existing law in order to enact the judge’s personal preferences. And that is contrary to John Adams’ maxim that we should strive for “a government of laws, not men.”
I can think of a dozen cynical rejoinders to what I’ve written so far, starting with the claim that Democrats do it, too, even if not so openly. But cynicism can quickly lead to a sour simple-mindedness. The point isn’t that the ideal formerly prevailed, but that there are strong reasons why everyone, of every political persuasion, should want it to prevail now. In the first place, power itself is neutral. In a system in which government control alternates between the parties, using power illegitimately is almost the same as granting illegitimate power to one’s enemies. Turnabout, as they say, is fair play, and hypocrisy is a poor defense.
Legitimacy itself is a second concern. When things get really dicey, the system relies on force to enforce the law. As Bobby Fuller pointed out, if you fight the law, the law generally wins. But it’s much better when the legal system
can instead count on voluntary obedience. That happens only when citizens have faith that they will be treated fairly, in accordance with a body of rules and norms that exists apart from the will of any single individual. McGahn’s remarks undermine that faith.
Third, “It will not be denied, that power is of an encroaching nature,” as James Madison wrote 230 years ago. Perhaps the greatest concern raised by McGahn’s remarks is that they are so easily justified in political terms. If all the federal courts ever did was apply existing law to resolve disputes, it would hardly matter whether a given judge was a Democrat or Republican, liberal or conservative. The fact that those distinctions matter so much today is a measure of how politically powerful our courts have become. Amassing political power makes courts political targets.
Years ago, I was told an easy way to predict the outcome of a Supreme Court case: nine times out of ten, the justices will choose the result that does the most to enhance their own power. We’d all be better off if we could believe that was just a cynical joke.