The judiciary

In the current federal judicial nomination process, judges are nominated by the president (more accurately, by an office subordinate to the president, subject to his approval) and then confirmed or rejected by the Senate. This is the system set up in Article II, Section 2:

“[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

In principle, I like this system. On its face, it seems to evenly divide influence over the judicial branch between the executive and legislative branches. I also agree with the choice of the Senate, since senators tend to be more experienced and knowledgeable than Congressmen, and the process of judicial nomination is very important to the stability and effective operation of the government. However, there are some large problems.

The confirmation of judicial nominees has unfortunately become yet another of the political tools that the opposition can hold over the president’s head. Rather than doing their constitutional duty and confirming qualified justices in a timely manner, the opposition can filibuster votes or block them outright if they have a majority, until such time as the President gives them something they want. These delays are rarely for relevant reasons of merit, but political maneuvers. These delays are unnecessary and have the potential to harm the efficacy and expediency of the justice system.

In terms of the quality of judges, I think we’re doing fine overall. There are probably more political nominees than there should be, in spite of Nixon’s legacy of a professionalized judiciary, but this doesn’t seem to be a glaring problem.
The Court is a fundamentally political body, but is temIn terms of the quality of judges, I think we’re doing fine overall. There are probably more political nominees than there should be, in spite of Nixon’s legacy of a professionalized judiciary, but this doesn’t seem to be a glaring problem.

The Court is a fundamentally political body. Its political whims are tempered in some cases by the actual facts of the case, but as many surveys of Court decisions go, justices vote largely according to their political beliefs. This explains the frequency of 5-4 split votes. This shows that the idea of judicial objectivity is largely a myth.

That’s not to say that the facts of the case are irrelevant; however, justices tend to be very mindful of how the ruling will affect the rest of the legal world in precedent, and their political views shape how this awareness affects their votes.
As an example to support my claim: if justices were truly objective, merely agents who applied the law to individual, why would we need a multi-layered appellate court system? Every judge would always reach the same conclusion. This is, of course, absurd. Judges are human, and their experiences, beliefs, etc, all color the way they see and interpret facts.

I don’t think the president really needs to address the myth of judicial objectivity unless it becomes necessary to publically oppose a particularly heinous ruling. Without that occurring, there’s just no need for him to talk about it. The president picks justices who share as many of his beliefs as possible while still getting the nomination confirmed. The justices present themselves as objective during the Congressional hearings, and the president extols their qualifications and merit as a great legal mind. It’s all essentially a charade, but what’s wrong with that? Calling it what it is wouldn’t intensify the battle over nominations substantially, since everyone involved knows what’s really going on. For the president to explicitly promote the myth of judicial objectivity would be dishonest, unnecessary, and harmful to the reputation of the Court as well as the political prospects of the president.

However, when the lack of objectivity in the Court leads to decisions the president sees as dangerous, it may be beneficial for him to come out against them publicly. Obama’s criticism of the decision in Citizen’s United v. Federal Election Commission was justified, in my opinion, and necessary both for the political future of himself and his party and on principle. If he had said nothing, the public would’ve seen him as complicit, and associated him and the Democratic Party with the massive corporate spending that more often fills the pockets of the GOP. Note: I have no evidence to back up that claim, but I’m pretty sure it’s true.