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November|December 2005

Litmus Tests

By Lincoln Caplan

JOHN ROBERTS AT 50 IS THE YOUNGEST chief justice of the United States since 1801, when John Marshall was confirmed at 45. As the successor to William Rehnquist, he is also the first justice to take the seat of a justice he clerked for. With his superb academic record, his sterling reputation as an advocate, and his valuable experience as a lawyer in the executive branch, Roberts's preparation for the Supreme Court is outstanding. Because President George W. Bush elevated Roberts from a nominee for associate justice to one for chief justice only two days after Rehnquist's death, his ascent to leadership of the Supreme Court seemed fated as well as swift.

For many years, however, Roberts's climb to judicial prominence seemed slow and ill-fated. The first President Bush picked Roberts in 1992 for the federal appeals court in Washington, D.C., when Roberts was 37, and the nomination expired when Bill Clinton became president. The current President Bush picked him for the D.C. Circuit again in 2001 and once more in 2003, when Roberts was confirmed. All told, his nomination for the appeals court was pending for 1,088 days before it was approved. While his arrival at the high court is significant for American justice, so is the story behind this holdup.

A generation ago, when Jimmy Carter was president, it took about a month between the time someone was nominated and confirmed for the federal appeals court. By George W. Bush's first term, it took almost 10 times as long. Politics caused the added delay. In that period, as Ohio State University's Nancy Scherer recounts in her new book Scoring Points, the selection of judges for the federal trial and appeals courts became acutely ideological. The transformation counts because on average each president appoints hundreds of lower-court judges, compared with just two Supreme Court justices, and because, despite the importance of the cases the justices decide each year, the judges on the lower courts are the final arbiters on more than 99 percent of the disputes heard in federal court.

Two major changes in American life during the 1950s and 1960s explain this shift. First, the system of mass political parties frayed, and interest groups concerned about civil liberties, racial equality, women's rights, and other issues became key mobilizers of voters in elections. Second, the role of the federal courts was altered, with cases about the property rights of businesses and the wealthy largely replaced by those about constitutional rights of criminal defendants, minorities, women, and others. In the old days, the parties viewed judicial appointments as a form of high-class patronage. Today, the interest groups focus on the federal courts as vital shapers of policy.

Nominations to the federal courts matter for activists across the spectrum, even though it's rare for the selection of lower-court judges to become a campaign issue. Because candidates for the White House and the Senate rely on activists to galvanize their campaigns, and politicians must "score points" with activists to win their backing, politics have turned judicial selection into a litmus test based on ideology.

This began to happen in the late 1960s and it immediately affected the rulings of appellate courts. Presidents Lyndon Johnson and Richard Nixon picked lower-court judges for ideological purposes—Johnson, to uphold civil rights; Nixon, to tear them down—and in that era so-called party-polarized voting on the bench became the norm. A judge appointed by the liberal Johnson was more likely to vote in favor of minority rights in a case involving a racial issue; by the conservative Nixon, to vote against. Throughout the appeals courts in the next generation, the link between ideology and result became more pronounced in race cases, more so still in abortion cases.

As the divergence between the votes of judges appointed by Democrats and by Republicans has sharpened, a political struggle to control the lower federal courts has escalated. The holdup of the nomination of the conservative Roberts to the D.C. Circuit was a case in point. When Senator Charles Schumer, a Democrat from New York, called in 2001 for the open consideration of a nominee's ideology, the idea was greeted as a political ploy rather than a realistic response to a historical trend. But the significance of the lower courts' ideological tilt is plain and, as Schumer recently noted, there is a growing consensus that this kind of inquiry is legitimate.

Every Supreme Court justice was a former federal appellate judge when Roberts went before the Senate to become chief justice. When justices are likely to be selected from the pool of appellate judges and the judges would not have been picked but for their legal, political, and social beliefs, ideology becomes a central factor in picking justices. Chief Justice Roberts will preside over a court whose divisions reflect that reality, and over a federal judiciary that does so even more dramatically.

Lincoln Caplan is the editor and president of Legal Affairs.

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