Ruth Marcus | Of Politics and Judges

Washington – I’m hoping for the moment when a federal judge picked by a Democratic president strikes down the health care law. Or when a Republican-appointed judge upholds it.

Either way. Because the current lineup of decisions, in which two Democratic-nominated judges have ruled in favor of the law, one Republican against, is not healthy for the judiciary or the democratic process.

It is facile to think of judges as umpires robotically calling balls and strikes. But it is also dangerous to think of judges as players on a particular team, still wearing uniforms under their robes.

The reality is more complex. Judges come to the bench with particular understandings of the role of courts and the reach of the Constitution. Democratic presidents tend to pick judges with a more expansive understanding of constitutional provisions and a broader conception of federal government’s role. Republican presidents tend the opposite way.

And let’s not kid ourselves, getting to be a federal judge is in part a political exercise. It is the rare judicial nominee who arrives on the bench with no connection to the world of politics.

So two phenomena coexist in inevitable tension with each other:

On the one hand, it would be surprising if the judicial tally so far had come out in a different direction on the constitutionality of the individual mandate. A judge nominated by a Democratic president is more likely than a Republican nominee to view the Commerce Clause as giving the federal government broad regulatory powers. Especially in a case like this, where the constitutional sketchbook has not been completely filled in by the Supreme Court, judges make choices reflecting these differing conceptions.

At the same time, it would be disturbing if judges were to automatically rule — or if the public were to assume that judges automatically rule — for their team. I happen to believe that the individual mandate passes constitutional muster but I also believe a credible argument can be made the other way.

Partisans on both sides view the situation through a more conspiratorial lens. Consider the statement issued by Nan Aron of the liberal Alliance for Justice after Monday’s ruling finding the individual mandate unconstitutional: “If anyone needed proof that judges matter and that the current battle in the Senate over judicial nominations is a fight worth having, they need look no farther than today’s ruling by Judge Henry Hudson, a former conservative Republican politician from Virginia, on a lawsuit filed by a current conservative Republican politician from Virginia, state Attorney General Kenneth T. Cuccinelli.”

I agree with the first half of this sentence — judges, and nominations battles, matter — but dissent from the cynical reductionism of the second. Hudson’s ruling was wrong but he was hardly doing Cuccinelli’s bidding. In fact, he declined the Virginia attorney general’s request to strike down the law in its entirety.

Some judges, even some federal judges, are partisan hacks. Yet judges ought to be afforded the presumption of non-hackery — at least until proved otherwise. Which is why I think it was a mistake for Hudson to retain an ownership stake, valued at between $15,000 and $50,000, in a Republican political consulting firm, Campaign Solutions. Even worse, Cuccinelli has been a client of Campaign Solutions.

Note to Judge Hudson: Going on the bench means cutting ties with the team.
A point, by the way, that Justice Antonin Scalia might also consider. Scalia has accepted an invitation from Minnesota Republican Rep. Michele Bachmann to address the conservative Tea Party Caucus next month.

This is a terrible idea. Justices frequently address groups with ideological viewpoints — the conservative Federalist Society, the liberal American Constitution Society. I have no particular problem with such appearances, although it would be wise for justices not to limit themselves to organizations on a single side of the spectrum.

But there is a difference between ideological and partisan. Justices don’t belong at partisan gatherings, period. One illustration of why is the uncomfortable fact that Bachmann has filed a friend of the court brief arguing that the health care law is unconstitutional.

That issue is headed, inevitably, for the high court, where, I suspect, Scalia will share Bachmann’s assessment. The justice’s tea party excursion fuels unfortunate suspicions that his vote, if it turns out that way, will be driven by partisanship. Because the truth, I think, would be less sinister: his understanding of the Constitution is flawed.

Ruth Marcus’ e-mail address is ruthmarcus(at symbol)washpost.com.

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