by Senator Sheldon Whitehouse, (D-R.I.)

*These remarks were given by Senator Whitehouse during a Senate Judiciary Committee Nomination Hearing on November 1, 2017

Our Senate Judiciary nominations hearings, I believe, have become something of a joke. Nominees come to us readied for our hearings by "murder boards" that taught them how to withstand all five minutes of questioning by Senators. Nominees are often packed into panels, so a Senator’s five minutes get spread across multiple nominees. The questioning of nominees is often simple and rote. A fundamental premise in the proceedings is that there is inevitably “law” that can be impartially applied to “facts,” and there endeth the lesson.

The falsity of this premise can be shown in two words: Merrick Garland. If judging were all about impartial application of law to facts, why the desperate effort to stop the most qualified judge to be nominated to the Supreme Court in our lifetimes? Why does the Supreme Court majority of five Republican appointees rule so predictably on so many issues important to big Republican interests? Why did candidate Trump need to make a list of whom he’d appoint to the Court to get conservative backing? Why are gobs of political dark money spent by special interests to push for the confirmation of judicial nominees? All of this political behavior around judicial appointments belies the notion that it’s just about impartially applying law to facts. Yet we’re supposed to accept the pretense.

The pretense is belied not just by political behavior, but also by what practicing lawyers experience day to day. Of many possible examples, here are particularly obvious ones.

Trial judges have virtually unlimited discretion to decide on the credibility of witnesses, and if they are predisposed against black people or police officers, that will affect credibility determinations in, for instance, police brutality cases. A case is not made up of “facts,” but of a cloud of often contradictory evidence from which “facts” must be drawn – usually through the prism of a witness's credibility. Judicial bias can affect credibility determinations, and thus case outcomes.

Procedural matters such as discovery rulings and case scheduling can allow favoritism or predisposition to creep in and affect a case. A court can allow a well-heeled defendant to batter a plaintiff into submission with endless motions and discovery – the "paper blizzard" defense.  Jury instructions can be given in ways that lean one way or the other (but still survive appellate review).

Judges sometimes throw out jury verdicts because, well, they’re just too big, or too disruptive of the status quo. Cases often require judges to consider multiple factors, and how the different factors are weighted falls within the discretion of the judge – at least until the weighting becomes so slanted that it tips the very generous “abuse of discretion” standard of review. (If it were not clear enough that discretion is involved in all these decisions, the name of the “abuse of discretion” standard ought to settle that question.) Judges can even refuse to apply the law as written, if it would lead to an “absurd” result.

In practice, there’s simply no way to prevent a judge’s unconscious biases, life experiences, and personal beliefs from influencing his or her decision-making.  Indeed, the law routinely asks judges to give tangible meaning to vague and general terms like “due process” and “liberty”; and to decide whether searches or seizures are “reasonable,” whether a particular governmental purpose is “compelling,” whether a given punishment is “cruel and unusual,” or whether a governmental act or omission “shocks the conscience.”

Judges on appeal are customarily asked to consider the consequences of their decisions by litigants anxious to steer a court away from an undesirable decision. Consequence-based advocacy fills amicus curiae briefs in the United States Supreme Court. There is no question of law in a judge’s evaluation of the likelihood, or the merits and demerits, of those suggested consequences. If all that were going on was a simple application of facts to law, consequences would have no place, and well-heeled amici would not waste their money on those briefs.

These life experiences of practicing lawyers are echoed by learned scholars and judges. The judgment calls made by judges, as one scholar wrote, “inescapably are influenced by – if not based on – a judge’s own views and experiences.”

One prominent aspect of the hearing charade is asking nominees to forswear “judicial activism.” But as scholar Erwin Chemerinksy put it, “any first year law student knows that judges make law constantly.” Our constitutional history is riddled with activism that moved constitutional understanding forward: consider the before-and-after of Brown v. Board of Education, or Loving v. Virginia, or Roe v. Wade, or recently, Obergefell v. Hodges.

In itself, “anti-activism” promotes its own bias: that the mores and social norms of two centuries ago should receive preference today in constitutional analysis. That preference for old days and old ways is itself a policy choice.

“We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own,” wrote Judge Benjamin Cardozo in his seminal work, The Nature of Judicial Process. Cardozo rightly recognized that many cases are squarely controlled by precedent, where “the law and its application . . . are plain.” He described these cases as an exercise in comparison, to match the colors of the case at hand “against the colors of many sample cases” in the jurisprudence. “It is when the colors do not match,” Cardozo observed, “when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins.”

Judge Theodore McKee, of the United States Court of Appeals for the Third Circuit, has reflected on Chief Justice Roberts’s metaphor that a judge’s role is merely to “call balls and strikes.” While “noble” in principle, McKee explains, the “the ideal of objective adjudication is actually counterproductive because it assumes a reality that is based upon an abstract principle rather than our everyday reality.” Like Cardozo, McKee acknowledges that in many cases, the facts and law are so clear that there is “little room for a judge’s personal view to impact his or her decision.”  But he urges judges to “candidly admit that there are other instances where there is enough play in the factual or precedential joints to allow personal beliefs to affect our adjudication.” Judges cannot just call “balls and strikes,” because they may not share a common strike zone.

Judges – including lower court judges – do make law. The common law – our founding tradition – is judge-made law. Justice Felix Frankfurter put it well: “one of the evil features, a very evil one, about all this assumption that judges only find the law and don't make it, often becomes the evil of a lack of candor. By covering up the lawmaking function of judges, we miseducate the people and fail to bring out into the open the real responsibility of judges for what they do.”

So let’s be candid. What we want, I think, is judges who hold American democracy first in their heart; judges who understand that there is abundant scope for the influence of their bias, prejudice, and political, philosophical, or religious views yet will endeavor to be always fair notwithstanding; judges who are willing to make disruptive or uncomfortable rulings if justice requires rather than bow to power or convention; judges who understand that often the courtroom is the public’s last defense when powerful political interests have overwhelmed the legislative and executive branches; and judges who can honestly guarantee that the big special interests who bring so much pressure to bear on the judicial nomination process will not receive favor.

Too often, we do not see this. And too often, the charade that Judiciary hearings have become never touches on these problems, and foments a Tooth Fairy view of adjudicating that is, as Justice Frankfurter said, a disservice to the nominees, the committee, to the public, and to the country.