With the Massachusetts Supreme Judicial Court facing several pending vacancies and more on the horizon, and with the late Justice Antonin Scalia’s United States Supreme Court seat vacant and already creating a showdown between President Obama and the Senate, the topic of who should fill judicial vacancies, particularly on courts of last resort, will be hot for months to come.
It is easy to see nomination battles in partisan terms – with “liberal” nominees championing liberal causes like same-sex marriage or abortion rights and “conservative” nominees pushing law and order and “slowing social progress.”
Viewed through such a lens, court appointments are simply indirect extensions of the political process: the people vote for politicians they agree with, and those politicians, in turn, appoint a judiciary seeking to accomplish the same ends.
But viewing judges, particularly judges on a high court, as serving a political function misses the point entirely. State and federal judges are not supposed to be political actors. To the contrary, their role is to serve as referees to determine which questions are properly the province of the ever-shifting democratic majorities of the body politic, and which actions of our temporary elected officials violate our permanent governing documents.
Thus, judicial appointees, though appointed by the executive branch and confirmed by the legislative, must be able to strike down or rule against the very actions these branches might take, because their fidelity must be to the law, not to their political patrons.
To take an easy example, other than voting on proposed constitutional amendments, politicians don’t get to vote on the Bill of Rights. It does not matter if 95 percent of the public wants the police to able to execute searches without a warrant (and thus elects representatives with that view), a judge must protect the individual’s right to be free from unreasonable searches and seizures.
In this respect, constitutional law, on the state or federal level, is anti-democratic. To protect the individual, it limits the authority and ability of the political branches to act collectively if such actions violate the enumerated rights of the citizenry.
But our judiciary also protects the democratic process itself. Appellate courts are not designed to serve as super-legislatures: most questions about how to structure society (tax rates, welfare benefits, what to prioritize in terms of spending) do not implicate constitutional provisions and are thus left for the people to decide.
The tension for judges, and the risk to the democratic process, arises when a judge does not agree, politically, with what the voters or the legislature has decided.
Will a given judge be content with that outcome, or will she “constitutionalize” an issue to overturn the will of the people and impose her preferred outcome? Judges are, in general, smart. They have the intellectual ability to find or extend a “constitutional” right to overcome almost outcome they disagree with. What assurance to we have that we are appointing “judges” rather than a super-legislature with veto power over the political branches?
This is where textualism and originalism, theories of interpretation advanced by Justice Scalia, and described by Kevin Martin here, offer protection. Although Justice Scalia is best known as a “conservative” justice, his theory of interpretation is neither liberal nor conservative. Rather, it both protects the individual from government intrusion and protects the democratic process allowing it to decide our most contentious issues.
For example, Justice Scalia, no fan of flag burning, voted to protect the right of a bearded hippie protestor to burn the American flag on the grounds that flag burning is a form af free expression protected by the the text of the First Amendment.
Likewise, although, as a devout Catholic, Scalia likely personally opposed abortion and same sex marriage, nothing in Scalia’s opinions found either practice contrary to law or unconstitutional. He would have upheld a state’s right to redefine marriage or adopt liberal abortion laws because the Constitution is silent on these issues and leaves them to the democratic process to decide.
As with all legal questions, smart lawyers can quibble about where to draw certain constitutional lines. But there is no question that, under Scalia’s theories of interpretation, something other than his personal view of the “best” outcome of the case drove his thinking.
Obviously, not every judge will be, or should be, like Scalia. Nor will every judge be a textualist or an originalist. But as the series of nominees for the Massachusetts SJC are considered, and a replacement for Justice Scalia is nominated, all should be able to articulate some theory of constitutional analysis that will, as often as not, lead to outcomes with which they disagree politically. Otherwise, we are not appointing judges, but unelected politicians that undermine our democracy.
Robert N. Driscoll
Robert N. Driscoll is a native of the Boston area who currently practices law in Washington, D.C. The views expressed in this column are his own and not those of his firm. Nor are they the views of his wife, daughters, or greyhounds. Read his past columns here.
(Courtesy of Wikipedia) 
