February 27, 2003
"Judicial Extremism: a German Antidote"--A Commentary by Prof. Bruce Ackerman
(This essay was originally published in the February 19, 2003, edition of the Los Angeles Times.)
Judicial Extremism: a German Antidote
By Bruce Ackerman, Sterling Professor of Law and Political Science
The Senate filibuster over Miguel Estrada's nomination to the U.S. Court of Appeals has opened the way to another two years of bitter conflict over the future of the federal judiciary. Yet before another cycle of cynical manipulation begins, we should pause a moment to reflect on whom we nominate, and how we handle their nominations.
It is easy for Democrats to condemn President Bush for extremist nominations, and for Republicans to condemn Democrats for Senate filibusters. But these escalating accusations are only symptoms of deeper problems in our system. More modern constitutions have invented better ways to handle the problem of judicial appointments.
After World War II, the Germans embraced the American example and created their Constitutional Court to exercise judicial review. In contrast to our practice, however, their laws require a two-thirds majority in the Legislature for appointments to this highest court. This means that the minority party can veto extremists, pushing nominations into the center.
The mere existence of the supermajority rule serves as an effective deterrent. Fire-breathers don't get on the nominating short list because they will never make it through the supermajority obstacle course.
Politicization is checked further by a second limitation. Although our judges serve for life, German constitutional justices serve for a single 12-year term. So the political stakes involved in any appointment are lower.
These two simple rules have helped preserve the legitimacy of the German judiciary. Like the U.S. Supreme Court, it has handed down many important and controversial decisions. Nevertheless, the leading parties haven't politicized the process of appointment. They are confident that the court will remain anchored in the center of the evolving constitutional consensus. It simply doesn't make sense for politicians to slip highly partisan nominees onto the court in an effort to jolt the law into radically new directions.
Unilateralism is something new in U.S. foreign policy, but it is par for the course in American constitutional law. For the first 150 years of our history, the Supreme Court was almost unique in exercising judicial review -- the power to strike down legislation in the name of the higher law, the Constitution. We had nothing to learn from foreigners because there was nothing to learn.
However, since World War II, many nations have followed the American example of judicial review, and half a century of comparative experience should begin to serve as a precious resource for our constitutional self-understanding.
As everybody recognizes, the founding fathers did not anticipate the powers of the modern Supreme Court. In the words of Alexander Bickel, it was "summoned up out of the constitutional vapors over long historical development." It is a fair question whether the framers would have left appointments to the simple majority of the Senate if they had glimpsed the future influence of the Supreme Court.
In any event, we stand on the shoulders of giants and see some problems more clearly. I do not believe that the court will survive as a legitimate part of our system unless we can somehow break our escalating cycle of partisan manipulation.
Frankly, there is little hope of enacting a constitutional amendment that changes the formal rules for judicial selection to match the successes of the German model. Yet there are other ways of adapting our system to avoid our ongoing political clashes.
The Senate filibuster, for instance, could become a regular part of the process. Filibusters require 60 votes to terminate and, like the German insistence on a two-thirds majority, would serve as a check on extremism in high court appointments.
Presidents also should stop nominating young people to the Supreme Court in the hope of projecting their passing political power 40 years into the future. Nominees should be rejected unless they are 60 or so.
This framework permits a more nuanced approach to the Estrada nomination. Estrada is 42, with sufficient credentials to warrant confirmation to the court of appeals. But the Democrats should make it clear that they will filibuster any nominee to the U.S. Supreme Court of similar youth and inexperience. They should insist on justices with the maturity and record of moderation needed to keep the court within the mainstream of American constitutional values.
Bruce Ackerman, professor of law and political science at Yale, is author of the multivolume We the People (Harvard University Press, 1991, 1998).