clock menu more-arrow no yes

Filed under:

The law can never be independent of politics

Two weeks ago, I wrote a column about the Senate filibuster that is holding up a confirmation vote on the nomination of Miguel Estrada to a federal appellate court judgeship. Since then I've been bombarded with e-mails attacking Senate Democrats for opposing a nomination on "political" grounds. These correspondents are of the view that the Senate's advice and consent function should be limited to determining if a judicial candidate is "qualified" for the position, and that this determination should not inquire into a candidate's private political views, as long as the candidate seems likely to keep such views from affecting his interpretation of what the law requires.

People who make this argument do not understand how law works (this is largely not their fault, as much of the legal system is dedicated to making sure that people don't understand how law works). Asking a judge to keep his political views separate from his interpretation of the law is asking that person to do the impossible. Just about any legal dispute that reaches a federal appellate court cannot be resolved apolitically, even in theory, let alone in practice.

Consider an issue such as affirmative action. Whether federal courts should allow the government and its subsidiaries to employ racial preferences is a question for which the law provides no answer, or rather for which it provides a number of answers that contradict each other. Which of these answers a judge will consider the "real" law depends, among many other things, on the judge's view of the relative importance of original constitutional meaning, subsequent precedent, statutory interpretation, deference to democratic decision makers, and a host of other factors.

A judge's views on such matters are necessarily political views, and therefore necessarily controversial. "The law" can't answer a question such as, for example, whether constitutional directives ought to be interpreted broadly or narrowly, because a great number of authoritative legal materials provide answers to this question that are both compelling and completely contradictory.

A few years ago, certain members of the legal academy took it upon themselves to point all this out in the form of a three-word proposition: Law is politics. Taken literally, that proposition is too crude and reductive (law is not exactly politics, or to the extent it is politics it's politics of a very strange sort). Nevertheless this claim is far more accurate than the claim that law is not politics, which underlies arguments that judicial nominees should be judged solely on the basis of whether they are "qualified" to hold the position.

Yet the "law is politics" claim is overly simplistic in another sense. From the standpoint of rational bureaucratic decision-making, it makes perfect sense for politicians to oppose a nominee because they object to what they know or suspect about the nominee's political inclinations. But when one considers the ritualistic function that law performs in our culture, the situation becomes more complicated.

The appearance of legal authority depends in part on the belief that, when judges decide cases, they decide them solely in reference to external norms ("the law"), without reference to their own beliefs and preferences. That such a decision-making process is impossible does not make it, from the standpoint of social order, any less desirable. Therefore we would expect judges, and the politicians who nominate and confirm them, to both see and not see that law is politics, and to both affirm and deny this, according to the occasion. And this is precisely what we do see. The moral, I suppose, is that everything is for the best, in this the best of all possible legal worlds.


Paul Campos is a law professor at the University of Colorado. His e-mail is paul.campos@colorado.edu.