Judicial Philosophy Matters in U.S. Supreme Court Confirmations
On March 1st, Americans for Prosperity congratulated Judge Ketanji Brown Jackson on her nomination to the Supreme Court and urged the Senate to carefully evaluate her qualifications, including her judicial philosophy. Americans for Prosperity Foundation’s policy counsel, Eric Bolinder, set out to answer what Senate Judiciary Committee members should be looking for in a Supreme Court Justice and what makes a good judge, and a few characteristics come to mind. Some focus on aptitude: education, experience, intellectual rigor, understanding of the law. Others on character: temperament, fairness, compassion, commitment to justice. I doubt anyone can seriously quibble with this statement: “a good judge is impartial, understands the law, treats all litigants fairly, and seeks to ensure justice is done in every case.” Many judicial nominees fulfill these requirements—those that don’t should be rejected out of hand.
There’s another, critical element: judicial philosophy. This is the “toolkit” judges apply to every case. All judges should have, and be able to articulate, a judicial philosophy—how they plan to do their job. There are two primary schools of thought here: “living constitutionalism” and “originalism and textualism.”
Let’s start with “living constitutionalism,” which asserts that the meaning of the Constitution, or even statutes, should change over time outside of the amendment process. This flexible approach, which allows judges to change the meaning of the Constitution as they see fit, leads us down a perilous path to “judicial activism.” That is where a judge might look at the case or who is on what side and decides what the “right outcome” is. This doesn’t mean the objectively correct outcome dictated by law, but instead what that judge subjectively thinks should happen morally, politically, or otherwise. The judge then twists the law whichever way is necessary to decide as he or she sees fit. This isn’t how the law should work. Litigants should come into a courtroom expecting judges to leave their personal views at the door and simply apply the law to the facts of the case. Judicial outcomes must be grounded in a predictable, even-handed application of the text as it was understood when it was made law. If the law needs to change, and very often it does, that’s the job of the lawmaking branch — our elected members of Congress.
That’s where we come to the other major school: “originalism and textualism.” Under this approach, a judge’s job is to give the plain text of the law and Constitution the meaning it had when enacted and then faithfully apply that to the parties before the Court. This approach recognizes that it’s the legislature’s job to enact new laws or even amend the Constitution, not the job of unelected judges to change the written text.
These concepts may sound basic, but they undergird our entire legal system. They ensure that every litigant gets a fair shake, and that each branch of our government is responsible for its own job. Judges’ jobs are to enforce the plain text of the law as written, leave their own views at the door, and treat every litigant fairly. They should never engage in “legislating from the bench.” That’s for members of Congress, who are elected to do just that job.
So, as you consider the nomination hearings for Judge Ketanji Brown Jackson, here are a few things to keep in mind.
First, judicial philosophy. Every judge must possess some type of judicial philosophy—it’s how they approach every case! And it is one of the most important things we should know before giving someone a lifetime appointment on the highest court in our country.
Second, specific doctrines, like Chevron—where judges sometimes defer to an agency’s interpretation of a statute, regardless of the text—and whether she thinks they will be overturned. Here you may hear the common answer: “this case may come before me, so I cannot answer.” On specific cases, this is a fine answer. On broader questions of judicial philosophy, it’s not as acceptable. The Senate, and the American people, deserve to know how someone who will hold a lifetime appointment on the Supreme Court will approach the job.
Third and finally, pending or upcoming cases. While commenting on them is normally inappropriate, Senators are right to press on recusals where there might exist an already-known conflict.
As Judge Irving R. Kaufman once noted, “The Supreme Court’s only armor is the cloak of public trust; its sole ammunition, the collective hopes of our society.” Thank you for being such an integral component of an enlightened electorate. I’m Ashley Klingensmith, State Director with Americans for Prosperity-Pennsylvania. Find us on Facebook by searching @PAAFP and on Twitter by searching @AFPPennsylvania.