Associate Professor of Political Science Justin Crowe ’03 moderated a discussion Saturday between Judge Stephen Reinhardt of the 9th Circuit of Appeals and Judge Jeffrey Sutton ’83 of the Sixth Circuit of Appeals. The talk was titled “The Court, the Constitution and the Confirmation Wars.”
The conversation began with an explanation of the confirmation process and what changes to the process have been implemented in the last three decades. Reinhardt expressed negativity regarding the current direction of the confirmation process.
“Sutton wouldn’t be confirmed in the current Congress, where the minority party blocks everyone without sixty votes,” he said. “This is true of all legislation.”
However, Reinhardt emphasized that the confirmation process “is partisan, but that doesn’t mean the confirmation process is not important,” he said. “There is a place for the decision not to confirm, but the reason to defeat someone should be based on judicial perspective, on one’s view of the Constitution.”
Sutton agreed that the confirmation process is flawed, and he asserted that the confirmation process should “focus on integrity, experience and smarts.”
Sutton reasoned that the more involved the courts become in public life, the more the public wants to influence the courts. This tendency is manifested in increasing political confirmation processes, according to Sutton. “It’s hard to pick judges because judges can say no to democracy,” he said.
Reinhardt touched on how ideology and political persuasion are infiltrating the theoretically apolitical court system.
“Conservatives view the Constitution as a structural document created to maintain stability in the government,” he said. “Liberals believe it was a document designed to give full liberties to individuals; they have little interest in the structure of the government. This leads to two different philosophies, two different Constitutions and two different problems.”
Expressing a contrary opinion, Sutton said, “All justices care about structure, and conservatives [in addition to liberals] care about rights.” He expressed contention with the thought that a single judge could alter – via his own interpretation – a principle in the Constitution. In summing up this philosophy, he said, “If it’s in the Constitution, I’ll vote for it.”
This assertion invited debate as to the specificity of the Constitution.
“The Constitution does not refer to specific values,” Reinhardt said. “We have to have some people interpret the Constitution, and judges are the best prepared to do it.”
Crowe questioned whether judges have the right to amend the Constitution through their rulings. Reinhardt asserted that judges’ decisions over time did less to amend the Constitution than to make it relevant in today’s world.
“It’s a different world, a different country, but the founders left us with a broad set of principles,” Reinhardt said.
He further asserted that when the Constitution is unclear, judges must make difficult and often unpopular decisions. “It’s not what’s popular, it’s what people’s rights should be in a free society,” Reinhardt concluded, regarding the courts’ role in limiting democracy.
Sutton argued that the courts were not responsible for upholding the rights of the people; he said instead that the legislative branch should take a greater role in this regard.
“To me, the most important thing about living in a free country is that you have a legislative branch that cares about the rights of the people. I don’t want to live in a country where individual rights are up to the courts,” he said. “The courts serve as a backstop. When democracy makes a mistake, the courts are there.”
One concept that Sutton and Reinhardt agreed upon was that political bargaining is increasingly compromising the integrity of the confirmation process and the courts. Both judges said that the courts were designed to balance rouge political maneuvers and stressed the danger of inviting politics to the court system and corrupting judges’ objectivity.