Monday, May 3, 2010

The Telos of Supreme Court Nominations and Vacancies

The debate over Elena Kagan and what seems to be -- according to Tom Goldstein -- her surefire nomination to the Supreme Court provides an important opportunity to reflect on the purpose of Supreme Court nominations.  I want to present two contrasting views.
One view, which I'll call the narrowly political view, views the purpose of a nomination as a way to find a candidate who will vote with you more often than not and to get that person confirmed with as little fanfare as possible.  There are at least three significant markers of the narrowly political view.

First, the absence of a public record is presumptively qualifying (and the presence of a public record is presumptively disqualifying.   Thus Elena Kaga is presumptively qualified and Pam Karlan is presumptively disqualified). As the goal is narrowly political, the smaller target the nominee offers to your political opponents, the better.  So, we focus on the candidate's age, who can vouch for them (who their friends are), and we extrapolate from the little that is publicly known about the candidate to try to sketch, if very roughly, a picture of their constitutional vision (this is why Kagan's hiring record as Dean at Harvard is relevant).  Here the message to aspiring nominees is very clear: if you want to aspire to this office, you must say nothing, write nothing, and do not put forth a public vision of the role of the Court and the judge in a democratic society.

Second, political elites are the dominant players in the process.  Because the goal is political (get the candidate confirmed with as little fanfare as possible), their judgment (who is most confirmable) is critical.  They need and want absolute control over the process.  This explains the White House's admonition to liberals and progressives that they should raise their concerns about potential nominees behind closed doors and not in public.

Third and relatedly, the electorate must trust and is completely dependent upon the political wisdom of political elites.  The lack of a public record disempowers the electorate to the benefit of political elites and the narrow political aim leaves little for the public to contribute.  Here it really matters who you know, who you went to the opera with, who you went to school with.  These are the people who have information about you; they are the ones who know you.

The second view, which I'll call the democracy-enhancing purpose, is my view.  These nominations present a democratic moment (to borrow from Bruce Ackerman).  As many of us know, the Court exerts a tremendous influence on the lives of all Americans.  There are few issues that the Supreme Court finds off-limits.  This is our opportunity to debate the purpose of the Court, to explore alternative constitutional visions, and to argue about constitutional meaning.

From the perspective of the democracy-enhancing purpose, a lack of a public record is presumptively disqualifying.  This is because one cannot have a debate about the issues that matter if there is nothing of substance to debate.  Here it matters a lot less who you know.  This is because there is a public, as opposed to a private, record about the candidate's views or philosophy.  Personal testimonies about the candidate can enhance or clarify the public record but they won't substitute for the absence of a public record.  There is no need for the public to substitute its judgment for that of political elites because the public has access to public information about the candidate.

Importantly, this perspective encourages broad democratic deliberation.   It tries to use this opportunity to inform the public and to make a case why a particular vision is the right one.  It communicates a clear message to those who aspire to this constitutional office: if you want to be a Supreme Court justice one day, at a minimum, you should develop a public vision of the role of the Court and the judge in a democratic society.  We might not agree with your vision but we will not consider you without one.  And by the way, it does not matter who your friends are, where you went to school, whether you're religious or not, what your sexual identity happens to be because, after all, this is a meritocratic democracy.

Isn't it?

1 comment:

  1. Interesting, alas we have entered the political age of 'no one is wrong' 'no one is right' and 'no one wants to put it down on paper'! While, some, (perhaps you), may but the blame on our President, it is more percisely the fault of media; the fourth unrestrained branch of the government. As long as the media continues this trend of lazy oversimplified reporting, the electorate will have to 'settle' by evaluating those who will eventually become our leaders through a glorfied popularity contest. Bottom line, no one wants their papers, writings, and sermons presented to the public in minipulative sound bites...