Recently, the 6th Circuit Court of Appeals upheld the legality of a Michigan affirmative action program in an en banc opinion.  The 8 justices who voted to uphold the law were all appointed by Democrats, while the 7 dissenters were appointed by Republicans.  This sort of split along party lines is actually quite common in our courts: Bush v. Gore is probably the most famous example (Justice Souter actually broke the trend, but he is something of a special case). Other examples can be found along any number of traditionally partisan issues from gun control, to prisoner’s rights, to campaign finance reform, to homeland security.  This is not to say judges never vote against the presumptive interests of those who appointed them, but the correlation is present and quite troubling.

There are two plausible explanations for this correlation (putting aside chance): either presidents choose judges on the basis of how they suspect they will vote on key partisan issues, or judges are somehow influenced by the very appointment process itself.  For the second explanation, the Constitution gives federal judges life tenure and guaranteed salaries precisely so they will not feel beholden to any political body, constituency, or prior promise, and there is no reason to think the safeguard is insufficient.  The first option, however, is more likely true.  Indeed, it is occasionally explicitly admitted and is largely accepted by observers of the court.

This political directing of the judiciary by ideologically culling its membership is the wrong way to do things if you want the judiciary to fulfill its assigned function.  You don’t have to look at the Constitution too closely to realize that the judiciary is supposed to be separate from the elected branches, each having its own distinct goals.

Indeed, it’s hard to imagine a less representative body than the Supreme Court.  They are appointed for life and only removable by impeachment (only seven federal judges have ever been removed from office, no Supreme Court justice has).  They need not come from any particular geographic region or political affiliation (8 of the Justices went to law school at Harvard or Yale and 6 are from New York or northern New Jersey).  In this they mirror the Constitution: Supreme Court justices are changed rarely and with great difficulty, reflective of the principles of the past, and designed to counterbalance the sometimes questionable will of the people.

Appointments based on present politics are pretty clearly antagonistic to that goal.  The real question is: why do we do it anyway?

One clue lies in the fact that the problem has gotten significantly worse over time.  While modern scholars bemoan the fact that judicial nominees are not as forthcoming as they once were, it is easy to forget that it was not until 1959 appointment of Potter Stewart, in the wake of the highly controversial decision in Brown v. Board of Education, that Senate confirmation hearings were even considered necessary.

So what would increase our desire to shape and politicize the judiciary over time?  The only thing that comes to mind is that the Constitution is becoming outdated and more estranged from the present, and we could simply be feeling less compelled to abide by it.  If that is true, I’m left with two important closing thoughts.

Firstly, if we mean to cut ourselves free from the past, we should do it honestly. It does no one any good to have a Supreme Court with a 44% approval rating.

Secondly, in the words of Abraham Lincoln:

“Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties. And not to Democrats alone do I make this appeal, but to all who love these great and true principles.” — Abraham Lincoln, Aug. 27, 1856 speech at Kalamazoo, MI.