The “Legal Process School of Jurisprudence” a/k/a “Formalism” was described in my last column. This view of how the legal system works contrasts and competes with several other theories regarding the method legal decisions are formulated by judges and legal analysis is performed by academicians.
Before further discussing these “movements,” “theories,” and “schools,” of jurisprudence, Stop. It is helpful to reflect on why we are paying attention to these issues at all. These terms are seldom discussed anywhere except in academic and judicial circles and settings. The reader will seldom, if ever, hear them discussed in courtrooms, or even in conferences of practicing lawyers. They are also generally not mentioned in the body of any Opinion by a trial or appellate court as an explanation for its decision because they are not authoritative. They are only analytical tools that are utilized almost exclusively by Academicians and other Commentators to explain the decisions and behavior of judges. For that reason, any discussion of these “Schools of Jurisprudence” should be viewed from this perspective, and therefore, recognized by the reader as limited in its purpose, application and utility.
Nevertheless, when U.S. Supreme Court and federal appellate court judicial nominations and confirmation hearings attract the attention of the media, discussions of these competing “judicial philosophies” by “Talking Heads” in the print and electronic media tend to expand exponentially based on the number of nominations and the level of the court for which the appointments are made. The phenomenon is easily noticed and explained as a product of the change in the last twenty-five years in the way federal judges are selected for appointment and scrutinized by the U.S. Senate as a part of the confirmation process.
Up until twenty-five years ago, federal judges were generally selected for appointment on the basis of some combination of their credentials, qualifications, political connections, constituencies, and reputation. Politics has always been a factor in judicial appointments. Furthermore, it always will be as long as the appointing authority’s first name is either “President” or “Governor.”
During this period, the confirmation process focused on what the “mix” was on a given nominee. That is was he or she qualified by temperament, training, and experience, as well as scandal free or was his or her appointment primarily driven by personal loyalty to the Judge Designate’s, U.S. Senator, or even the President of the United States. If the nominee’s politics, scandal or other personal issues overshadowed his or her qualifications, the nomination could have trouble in the U.S. Senate. If not, generally these would not be a problem.
Ideology, as reflected in the judicial nominee’s judicial philosophy or his or her political philosophy, which are not the same, was certainly considered, but not mentioned by either the President in appointing judges and justices or the Senate in confirming them. Instead, code phrases and slogans such as pledges to appoint judges who are “strict constructionists” and “judges who will not legislate from the Bench, but would only interpret the law” were heard on the campaign trail and in the Oval Office. If a U.S. Senator wished to oppose a federal judicial nominee, the political culture dictated that the Senator oppose the nominee on the basis of his or her lack of qualifications, inexperience, or other character deficiencies, including scandal. Even if the nominee’s judicial and political philosophy was totally repugnant to the Senator or even to a majority of the U.S. Senate itself, this was not to be the basis for opposing a person nominated by the President for a federal judgeship.
This changed with President Reagan’s nomination of D. C. Court of Appeals Judge Robert Bork to the Supreme Court. With that nomination, ideology and judicial philosophy were allowed to come front and center. At that moment, freed from its politically correct and cultural constraints, Bork’s judicial philosophy of “Originalism” emerged from the closet to stand before this Country and the U.S. Senate for inspection and discussion.
More on that and other judicial philosophies in this same space in this same newspaper’s next column.