28 Pages Posted: 12 Mar 2004
Date Written: March 2004
Part I of Judicial Selection: Ideology versus Character sets the stage for an argument that character and not political ideology should be the primary factor in the selection of judges. Political ideology has played an important role in judicial selection, from John Adams's entrenchment of federalists as judges after the election of 1800 to the Roosevelt's selection of progressives, liberals, and New Dealers, the contemporary era, from the failed nominations of Fortas, Haynsworth, Carswell to the defeat of Robert Bork, the narrow confirmation of Clarence Thomas. But until recently, political ideology has played its role behind the scenes - mostly off the official record of the judicial nomination and confirmation process. Perhaps the most important evidence of the new emphasis on political ideology in judicial selection is Senator Charles Schumer's op/ed Judging by Ideology, which argued for the proposition that political ideology and not character or competence should be the explicit on-the-record basis for Democratic opposition to Republican judicial nominees.
Part II investigates the case for the ideological selection of judges. This investigation begins with Senator Schumer's argument for explicit consideration of political ideology in the confirmation process and then proceeds to the development of a two dimensional model of judicial attitudes. The first dimension is a simple left-right measure of political ideology. The second dimension represents judicial philosophy as a position on a continuous real line, the origin of which is perfect instrumentalism (decisions are entirely a function of ideology) and the endpoint of which is perfect formalism (decisions are entirely a function of the legal materials). Given a scenario in which Democrats can block Republican nominees (or vice versa), the simple model yields a confirmation space, defined as the set of judges whose position in the two-dimensional attitude space are acceptable to both parties.
Part III presents the case for the primacy of character in judicial selection. The argument begins with the uncontroversial observation that almost every theorist of judicial decision can accept a thin theory of judicial vice. No one believes that cowardly, stupid, foolish, or corrupt characters are suitable for the position of judge. The next move is to argue that similar agreement can be reached on a thin theory of judicial virtue, the characteristics of mind and will that are necessary for excellent judging given any reasonable theory as to what constitutes a good judicial decision. Part IV moves beyond a theory of judicial virtue by investigating the particular virtue of justice. The paper argues that justice is best understood as lawfulness. A good judge is nominos; she grasps and respects the nomos, the laws, norms, and customs generally accepted by her community.
Part V answers a series of objections to character-driven judicial selection. These include the objections (1) that judicial selectors lack sufficient evidence of character, (2) that there are no objective criteria for good character, (3) that character is a private matter, and (4) that selection on the basis of character is not politically feasible. In each case, the objection, while it might be apropos of some character-driven theory of judicial selection, is inapplicable to the kind of aretaic theory developed in Parts III and IV of the paper. Part V concludes by noting that when ideological struggle is intense, nonideological judging becomes all the more necessary to realize the rule of law.
Keywords: judicial selection, nomination, confirmation, ideology, character, virtue, aretaic
JEL Classification: K00, K10, K40
Suggested Citation: Suggested Citation
Solum, Lawrence B., Judicial Selection: Ideology versus Character (March 2004). U San Diego Public Law Research Paper No. 04-07. Available at SSRN: https://ssrn.com/abstract=516585 or http://dx.doi.org/10.2139/ssrn.516585