In the recent Senate confirmation hearings for Judge Ketanji Brown Jackson, senators suggested that she supported pedophilia and that she was in favor of indoctrinating children and promoting a progressive agenda in school. The charges were clearly extreme and unfair, but this kind of political theater has become more and more common today in judicial confirmation hearings. What is going on?
Judges were once trained to try their best to make their decisions according to the law and not according to their personal preferences. It was expected of them, even when they didn’t live up to expectations. Judicial confirmation hearings were largely focused on professional competence or constitutional “philosophy” and not on the personal views of judicial candidates. This changed dramatically with the drama surrounding the confirmation of Robert Bork in 1987, and things have gone downhill since. Democrats introduced this betrayal of the confirmation process, but Republicans have embraced it and taken it to extremes.
Judge Jackson’s disgraceful confirmation hearing is a sign of a much bigger problem. There is still a lot of public posturing about “respecting the Constitution,” but everyone knows this is not sincere. As Ruth Marcus recently pointed out in The Washington Post, conservatives used to talk a lot about “judicial restraint,” but that has all but disappeared. Today, those who still pretend to be conservatives just want activist judges and courts that promote their political goals. And liberals abandoned judicial restraint years ago. We are witnessing a bipartisan attack on judges, the courts and the law.
Both liberals and conservatives have come to believe there are no real courts; there are only Democratic or Republican platforms for imposing decisions. If you are pro-choice, you want courts that will rule pro-choice, and if you are pro-life, you want courts that will rule pro-life. Confirmation hearings have become battlegrounds for promoting judges who share one’s own political prejudices. But it wasn’t always this way.
Political philosophers going back to Aristotle celebrated the idea of the law, even though they were quite aware that law is never completely impartial. Everyone knows that judges can be biased, but it is quite another thing to assert that judges shouldn’t even strive for a level of impartiality. Law was seen as a noble attempt to elevate society, even when it failed to reach that goal.
The problem is that as we lower our expectations about the courts, the quality of the courts declines to match our expectations. It’s the same with sports. If a coach expects very little from the team, the team will not perform up to its potential. And in education, if a teacher thinks that the students are not capable of much, they will learn less. The same is true for parents. When they don’t see the potential of their children, their children will not achieve their best. Our attitude about judges and the courts has become the same kind of self-fulfilling prophesy as well. To paraphrase Daniel Patrick Moynihan, we are “defining justice down.”
Until recently in the United States there was still a strong faith that law could at least be more impartial than a simple battle of opposing forces left to itself. That was the realm of politics. No more. Law isn’t seen as an attempt to bring about even a flawed approximation of justice. The more politicized the court has become, the less it tries to rise above politics. Using the law for one’s political goals has become normalized
This is leading to what I would call the abolition of law in the United States. Law as a noble aspiration has been rejected by political leaders, and what is especially troublesome is that citizens are beginning to think of it this way as well. We see it every day, from public figures who refuse to honor subpoenas from courts and legislatures to people who intentionally run red lights. Where will this lead? How long can our society last if we come to reject the idea of law?
Democratic society is a fragile thing. It depends for its existence on many political and non-political supports. One of the most important is trust in the integrity of law. We are on the verge of losing this in America. Let us hope that we can find a way to hold on to the belief that law can help us transcend political conflict and that judges can help us find our way.