Justice Stevens announced his retirement last week. Now the sixty-four thousand dollar
question: Who will President Obama appoint to replace him? Some might believe that the answer to
this question is not important because everyone knows that the President will
just replace a liberal with a liberal, but they would be wrong. The key question is not what the new
justice’s policy orientation is; rather, the question of most concern to me,
and that should be of most concern to us all, is whether the new justice will
be dedicated to the rule of law, or will add fuel to a disturbing trend in the
judiciary of placing policy ahead of objective decision-making. The choice is crucial because I believe
that the commitment to follow the law as interpreted by our judiciary will be
jeopardized if Americans come to believe that judicial decisions are nothing
more than lawmaking based on the justice’s policy preferences, behind a phony
mask of legal interpretation.
From his actions thus far, I fear that President Obama will
make the wrong choice. In his
State of the Union Address last January, the President criticized the Supreme
Court’s decision in Citizens United,
where the Supreme Court held that the First Amendment guarantee of free
speech-"Congress shall make no law . . . abridging the freedom of
speech"-prohibits Congress from silencing corporations during elections. Although I agree with the Supreme
Court’s reasoning in that case, I would not have been alarmed had the President
merely disagreed with the Court’s interpretation of the First Amendment. I have certainly criticized my share of
Supreme Court opinions. But what
alarms me is that the President never mentioned the First Amendment-or the
Constitution for that matter.
Instead,
he criticized Citizens United on
policy grounds based solely on the outcome; he thinks it is bad policy to allow
corporations to participate in the campaign process, and he thinks the Supreme
Court should have implemented that policy decision from the bench. Barack Obama went to Harvard Law
School, and he was a part-time professor at my alma mater, the University of
Chicago. He certainly should know
the difference between constitutional interpretation and policy, but one can
only conclude from his State of the Union remarks that the distinction, so
critically important to our system of separation of powers, just doesn’t matter
to him.
If this example reflects the views of this President about how
judges should behave-and I am pretty sure it does-it does not bode well for the
rule of law. First, it is
downright scary that the President of the United States has such little regard
for the First Amendment that he does not even acknowledge that a Congressional
exercise of power that blocks the flow of political communications during an
election campaign raises serious free speech concerns that deserve serious
review by our courts.
Moreover, by
leading the American people to focus on his policy objective rather than on the
mandates of the Constitution, the President himself was eroding the rule of law
because, through his example, he was implying that the words of the
Constitution don’t matter. Second,
this episode suggests that in selecting the next justice of the Supreme Court,
the President will focus on how a candidate’s political views will affect the
President’s political agenda without considering the candidate’s commitment to
the rule of law.
In my view, this would be disastrous. The judiciary has neither the power of the purse nor the
power of the sword, but only the power gained by faithful interpretation of the
law to keep the other branches of government operating within the powers assigned
to them. If judges continue to act
more like the political branches of government, the respect the people have for
the judiciary will be eroded, and the judiciary’s ability to enforce the limits
on governmental power will be eroded with it. That cannot be good for liberty.
So what can we do?
If, as I suspect, the President will not stand as guardian to our
judicial traditions, that responsibility falls to the Senate. The appointee will almost certainly
profess a commitment to the rule of law, but as in deciding which political
candidates to support at the ballot box, it is important to focus more on what
the candidate has done rather than on what he or she says. Any Senator who is not comfortable that
the candidate is resolutely committed to the rule of law should vote no on the
appointment.
Every President is given a few opportunities
to shape history. This is one of
those moments; President Obama can either stand up for the rule of law, as he
should, or he can allow the judicial commitment to principled decision-making
erode even further than it has by appointing someone who believes that policy
should be the driving force in deciding cases. Less frequently, the direction of history is determined by a
Senate vote.
If the President gets
this appointment wrong, each Senator must be aware of the importance of his or
her vote in preserving the rule of law.
I hope they get it right, but we as citizens should be prepared to hold
them accountable at the ballot box next November if they do not.