Judicial Nominees
by Christopher Dodson,
Executive Director, North Dakota Catholic Conference
July 2005

When is a court case decided correctly? Learning that what is “correct” in the law may not be what seems “correct” from a personal point of view is one of the difficult adjustments many first year law students must make. Understandably, most of us judge a court decision, whether it is an opinion by an appellate court or a verdict by a jury, according to whether we like or dislike the outcome. Consequently, the “blame” or “praise” is directed at the judge, court, or jury. Supporters of George W. Bush, for example, think the Supreme Court did right in Gore v. Bush while his detractors talk of a Supreme Court without integrity. Most of us do not ask whether the decision was right according to the law or even whether the law upon which the decision was based is itself right according to principles of justice and human dignity.

This variance of views as to what is correct sheds light on the difficulties President Bush and the U.S. Senate face concerning appointees to the Supreme Court. Interest groups want to know the nominee’s “position” on their issue. The problem, however, is that when it comes to deciding a case, a judge’s personal viewpoint on an issue is often irrelevant. Judges are supposed to apply the given law, not their personal opinions. When interest groups or U.S. Senators insist that a nominee take a position for or against a particular policy, they treat the judicial process precisely like the type of process they elsewhere decry, i.e. one where judges apply their personal views.

There are, of course, some judges that do apply their personal opinions, often with disastrous results. The challenge for the President and the Senate is to weed out those potential judges. This can be done without grilling the nominee on his or her personal views on every issue. The problem with those judges is not their positions on the issues. Rather, the problem is their disrespect for the law and the common good. Hopefully, one does not need to inquire about the nominee’s personal views to identify this character flaw.

If the nominee’s personal opinions on the issues are not relevant, what is? Certainly, in addition to his or her aptitude for the job, a nominee’s judicial philosophy is fair game. For some time, legal observers categorized judges as “activist” or “strict constructionist.” An activist, it is said, goes beyond the precise language of the law to render a decision that creates new law. The strict constructionist, on the other hand, interprets the law restrictively. While these terms have served some purpose for academic discussion, political advocates have adopted them for their own use so that the terms imply a position on the issues rather than an approach to judicial interpretation. Moreover, even for political purposes, the terms have limited use. Would pro-lifers really want only a strict constructionist, even if an “activist” justice could find a right to life for the unborn in the law?

More important than a nominee’s approach to interpreting law is the person’s philosophy about the law itself and his or her understanding of the Constitution. Does the nominee think the law – statutory, common law, and constitutional – is just “positivistic,” serving only what it says or does it serve a higher purpose, in conformity with the Natural Law?
Putting aside strictly personal opinions and even past opinions, does the nominee find room in the law for interpretations that support: the protection of human life from conception to natural death; the rights of minorities, immigrants, and those in need; the role of religion and of religious institutions in our society; parental choice in education; and ending the use of the death penalty?

These are legitimate questions because they go beyond the nominee’s personal views on the issues and avoid advocating a “cookie-cutter” approach to judicial interpretation. They seek an understanding of the nominee’s judicial philosophy as it relates to fundamental and crucial issues. If the nominee does not possess a judicial philosophy embracing the possibility of securing these basic rights, how can they serve the ultimate purpose of the law? If no nominee can find a way under the law to further these rights, perhaps the law itself needs changing.