Judging Judicial Nominees

Judge Merrick Garland, President Obama's Supreme Court nominee, meets with Senator Bob Casey (D-PA) in his office on Capitol
Judge Merrick Garland, President Obama's Supreme Court nominee, meets with Senator Bob Casey (D-PA) in his office on Capitol Hill in Washington March 22, 2016. REUTERS/Joshua Roberts

Decisions to appoint Supreme Court justices are among the most consequential that presidents may make, holding the potential to shape American law for generations to come. It is thus unsurprising that the nomination of Judge Merrick Garland has produced a political furor that is unlikely to die down anytime soon. Amidst all the partisan posturing, a fundamental question arises: What qualities should Americans seek in the next justice?

Since being appointed to the D.C. Circuit Court of Appeals in 1997, Judge Garland has consistently practiced "judicial restraint," understood as a willingness to broadly defer to government officials when their actions are challenged in court. He has deferred to assertions of power by federal agencies to halt the development of privately owned land; he has deferred to Congress in cases involving campaign finance regulations; he has deferred to police in cases involving warrantless searches and prosecutors in cases involving the rights of Guantanamo detainees. Conservatives have long heralded judicial restraint; more recently, liberals, too, have touted it as a desirable quality.

But reflexive deference to government power should be regarded not as a judicial virtue, but as a vice.

How did we get here?

Government-favoring judicial restraint was first championed by early-20th century progressives, who regarded the judiciary as a barrier to their efforts to accomplish sweeping social and economic reforms. Conservative support for judicial restraint began in the late 1950s with opposition to the Warren Court's decisions holding school prayer unconstitutional, securing privacy rights, and safeguarding criminal suspects against abusive police practices. Thanks to conservative icons like Judge Robert Bork, the push for judicial restraint became an intellectual movement. For decades, conservatives sought to appoint judges who were "modest," "humble," and reluctant to invalidate government actions. In recent years, liberals who have concluded that the judiciary is more likely to hinder beneficial social change than to promote it have called for judges to generally defer to the political branches and have accused the Court of engaging in activism by (among other things) enforcing the right to spend money on political speech and the right to bear arms in self-defense.

Whether urged by liberals or conservatives, judicial restraint rests upon false premises about the judiciary's constitutional role. The Framers established an independent judiciary to (in Alexander Hamilton's words) "guard the Constitution and the rights of individuals." Reflexive deference to the government represents an abdication of judicial duty and invites officials to transgress constitutional limits.

Liberals who are concerned about individual rights and determined to protect vulnerable minorities from unjustified discrimination should consider why the judicial restraint championed by progressives fell out of favor. Majoritarian politics did not protect dissenters during World War I; it did not protect people branded as communists during the "Red Scare"; it did not protect blacks in the Jim Crow south; it has never protected criminal suspects from abusive police practices. The courts represent the last hope of legal redress for the politically powerless. By tipping the scales of justice towards the powerful, judicial restraint renders that hope hollow.

For their part, conservatives must recognize that the judicial restraint movement has not delivered constitutionally limited government. Today, at the federal level, we find an alphabet soup of executive agencies whose powers are many, undefined, and cover nearly every human activity. At the state level, a bewildering array of protectionist licensing laws make it effectively impossible for countless Americans to pursue their entrepreneurial dreams. That judicial restraint has helped government slip its constitutional leash was vividly illustrated in Chief Justice John Roberts' unconvincing opinions for the Court upholding the Affordable Care Act, which saw Roberts essentially rewriting the ACA out of a misplaced sense of judicial duty to defer to Congress.

Thus, both liberals and conservatives should be concerned about Judge Garland's record of restraint. It is easy to be cynical about what has become an ugly partisan fight over Judge Garland's nomination. But the confirmation process can serve a valuable educational function. It is an opportunity for Americans to come to terms with the perils of judicial restraint and to recognize the need for consistent judicial engagement--impartial, evidence-based judicial review, performed without unwarranted deference to the government. We the People must take advantage of it.

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