It means that as hard as the Senate and the interest groups have tried — and boy, have they ever — to make it impossible for people who have passionate convictions (that they have ever talked about) or unpredictable views (best never mentioned) to be confirmed as judges and as hard as both sides have tried to turn the judiciary into a thoroughly investigated high-level collection of political shills, it doesn’t (always) work.
Oh, I know there will be people shaking their heads on the Sunday talk shows about how this just proves that there’s no “law” here and no certainty and how this is a failing of the rule of law and not cause for Champagne.
Respectfully, I disagree. Of course judges have personal views and life experiences and philosophical beliefs and political views, all of which will influence the still mysterious process by which, at least on some occasions, smart and honorable individuals reach conclusions that they might have thought, before they dug in to all the facts and law, they would never have even entertained.
This is known as “judging” — at its best. Take a smart and experienced person; have able lawyers lay out the issues; think; read; consult; decide. “Right?” “Wrong?” Sorry, but on something such as this, there really is no right or wrong. I may agree or disagree (probably some of both, with both decisions), but that doesn’t make anyone right or wrong. By definition, we have here a situation in which reasonable people — that is, respected judges considering the Constitution and precedent — disagree, which means we can, too. We may never agree on what’s “right,” but we will agree on what’s “final” when the Supreme Court finally decides the issue. Between now and then, we also will likely see some opinions by appeals courts, including all those supposedly left-handed powerhouses on the District of Columbia Circuit (who may or may not agree with the leaders of the parties who appointed them; in fairness, party leaders aren’t exactly marching in unison on this).
What all this means politically is, actually, a bit easier.
NSA is going to have to figure out ways to “clean up its act” without compromising on our security. Impossible? That’s actually irrelevant, given the situation the agency and administration now find themselves in.
This is not a quiet discussion among a specially charged task force. We are dealing here with a huge political (as well as policy) issue that could play in unexpected ways in the midterm elections. Right now, the Democratic Party is all over the map (if there were a Republican president, my bet is Democrats would be very united — against him), while an increasingly active and “well-connected” (by social media) movement is growing. The big companies are rightly concerned about getting sued for privacy invasions, even for doing no more than abiding a government request made in the name of terrorism.
So what next? Well, we could have some responsible and bipartisan leadership here — seeing as we aren’t perfectly split on partisan lines, not in the judiciary, much less in the polls — in drawing that balance and making clear (without telling our enemies what we are doing) that average Americans have absolutely nothing to fear. (They’d best not.)
Or, because that might be too much to ask for in the new year, how about a judiciary that continues to show its courage and commitment — and especially its independence.
Susan Estrich is a law professor in Southern California and managed the 1988 presidential campaign of Michael Dukakis.