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Should We Stop Calling Judicial Nominees “Moderate?”

With the passing of Justice Scalia and the nomination of Judge Garland as his replacement, judicial philosophy is again in the public eye.  Court watchers and armchair jurists alike suddenly have an opinion on the background and credentials of a federal appellate judge and judicial nominee that most people have never heard of.

Often, these conversations, blog posts, and news stories end up in the same place—hypothetical Judge X is a good pick because she is a “centrist” or a “moderate”; hypothetical Judge Y is a bad pick because she is an “ideologue.” But these are meaningless descriptions of judicial philosophy that we should do away with.

What makes a Judicial Nominee, Moderate?

After all, what does it mean to be a moderate judge or judicial nominee? Is it merely a judge who is willing to break with party orthodoxy to reach what they view as the right decision? In that case, the late Justice Scalia would certainly fit the bill, yet no one ever accused him of being a moderate. Scalia parted with his conservative colleagues on Sixth Amendment cases to protect the rights of criminal defendants to confront their accusers, on Fourth Amendment cases to protect the rights of individuals to be free from unreasonable police searches, and on First Amendment cases to protect the free speech rights of protesters who burned the American flag.  If “moderate” means breaking with the orthodoxy of the party that appointed him, why is Justice Scalia not considered “moderate?”

Does being moderate instead mean that the judicial nominee or judge respects precedent and avoids groundbreaking decisions? If so, then it seems strange that Judge Garland has been labeled as moderate, when he has openly advocated the re-examination the Court’s Second Amendment jurisprudence.  Moreover, is blind deference to precedent, something that we really want in a judge? Plessy v. Ferguson (upholding segregation) was precedent until Brown v Board of Education overturned it. Korematsu v. U.S. (upholding the internment of Japanese-American citizens) has still never been overturned. Upholding Plessy or Korematsu could hardly be viewed as moderate.

Finally, does being moderate mean that the judge splits the difference between the two sides of a dispute to reach a middle-ground? If so, then the term centrist or moderate is not a compliment. Law as a discipline, and constitutional law in particular, requires bright line rules in order for society to function. A system where individuals cannot know the basics of legal demands until a judge rules in their case is an unjust and unsustainable system. Yet that is precisely the system that would be created if each judge were a baby-splitting “moderate.”  Indeed, imagine what history would look like with a court full of “moderate” justices—segregation would still be “sort of” constitutional, government could “kind of” establish religion, and you may or may not have the freedom of speech…it depends.

In reality, complimentary monikers like “centrist” or “moderate” are merely the speaker’s way of saying that the hypothetical judge is “reasonable”—which is just another way of saying that the speaker agrees with the judge’s reasoning fairly often. After all, people tend to consider themselves moderate. More importantly, the feigned compliment “centrist,” if given any real meaning, describes a judge that doesn’t exist—and one that no one would care for if she did.

Upholding the Law Even When the Outcome is Disliked

Instead, we should seek a judicial nominee that will uphold the law even when they dislike the outcome. For example, Justice Thomas—who is no fan of drug legalization—ruled that federal regulation of intrastate marijuana consumption exceeded Congress’s authority under the Interstate Commerce Clause. Or more recently, Justice Breyer—a supporter of affirmative action—broke with his liberal colleagues in holding that Michigan could constitutionally outlaw such programs if it chose.  As Justice Scalia famously noted, “[i]f you like [your conclusions] all the time, you’re probably doing something wrong.”

The judiciary is a protector of our freedoms only if it is willing to treat those freedoms as if they were written in stone. A judiciary subject to democratic whims cannot protect against the tyranny of the majority. And a judiciary willing to substitute its preferences for what is written in the Constitution, risks becoming a tyrant itself. Judicial “moderation” in the face of such tyranny is no virtue.

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