The Center for American Progress put forth an interesting report entitled "Ideology Matters: A Progressive* View of the Judicial Confirmation Process." It is a reasonable eleven pages plus notes and provides a useful recent history (lip service aside) of how the Republicans partook "in a concerted and methodical campaign to populate the judiciary with individuals who are ideologically committed" to their cause.
And, as Prof. Jack Balkin and others have noted, this is on the whole fine -- the selection of federal judges indirectly is controlled by the people themselves, who vote for those who nomination and confirm them. By so doing, they have an important role in the development of the law, which is affected by the particular judges that fill the courts in a certain era. And, if politics is going to have such a role, ideology surely will as well.
The important thing is to realize the fact and not be taken by canards like "I want judges who interpret the law, not make them." C. Boyden Gray, White House Counsel of Bush41, argued in a Senate subcommittee hearing that ideology should not matter. The judicial nomination process should only on the potential judge's role "to interpret and apply the law." This is either very naive, hypocritical, or a plain falsehood; his past activities suggest we can do away with the first one.
As to President Bush's comment, not only is it ironic (as a statement of judicial restraint) given the activities of the Rehnquist Court, but it is quite confused. We are not a straight civil law system like Louisiana or France ... we are a mixed system with a strong common law component. And, thus, when a court interprets something like "Congress shall make no law ...," it is in effect making law. Nothing new or remarkable about this fact, an overly simplistic view of the governmental process aside.
The report defines ideology thus "beliefs about the Constitution and the role of the courts in interpreting it; their substantive views on the law; and the philosophical ideas and attitudes that inform their worldview." As a progressive organization, CFAP obviously has a certain worldview that they would like to promote, one that involves the courts in meeting "the needs of a changing society and who will interpret the Constitution to preserve and promote the ability of Congress and the courts to protect fundamental rights."
And, certain "fundamental rights" in particular, given they look down on the current move by some in conservative/libertarian circles to bring back property rights into the forefront. [Putting aside the current controversy over pro-choice Sen. Specter, who is next in line for the chair of the Senate Judiciary Committee, economic issues such as environmental regulations and tort litigation are a major concern of those who influence judicial selection these days.] But, overall, their point that ideology matters and is a legitimate matter of debate is quite sound.
[CFAP clearly provides an anti-Bush spin and at times one must be careful to take things with a grain of salt. One example given of the perils of a too narrow of a reading of the Constitution is that a traditionalist/literal reading would have led to the upholding on bans on interracial marriage. This is half-right: it would meet the tradition test, but not the literal one for clearly racial equal protection is "literally" protected by the Equal Protection Clause.
On the other hand, when some progressives question Roe v. Wade on textualist grounds, they too are on dubious ground. Abortion rights quite arguably is also about equal protection and other things, such as keeping the state away from selectively supporting certain religious beliefs.]
This is not to say that ideology alone is important, and this is important given that it is likely Senate Democrats generally will have a bunch of conservative/libertarian nominees to pick from. Various other factors should be focused on: professional distinction, character, integrity, energy, diverse specialties, ideological/racial/gender balance, and so forth.
Likewise, the process itself should be set up in such a way that all sides can properly do their roles, including those providing a check on the executive. The attempts by the President and Republicans to speed up the process even more, take away chances for the minority to have a full voice in the process, and hinder bipartisan or outside voices (such as American Bar Association review) from having an useful role in the process should be opposed.
And, yes, as Senate historian Robert A. Cairo has noted: "The writings of the framers of the Constitution make clear that Senators, whether acting alone or in concert with like-minded colleagues, are entitled to use whatever means the Senate rules provide to vigorously contest a President's assertion of authority with which they strongly disagree." This includes the time-old rule that a simple majority cannot end debate.
Let's put aside the fact that knee-jerk unanimity among a party in this field was probably not what was originally intended (thus, "moderate" Republican Sen. Specter supported every one of President Bush's nominees to the federal judiciary, every last controversial/strongly conservative one of them). A strong involvement of senators in the nomination, the Advise and Consent, process surely is the least we can hope for.
And, ideology among other factors should be an important factor when they do so. We should be honest about this fact, since even if we are not (and try to use other things, such as competence or conflicts of interest that turn out to be somewhat selectively attacked), it will still be a basic part of the process. Finally, it is foolhardy not to realize the ultimate important of the judicial selection process as a whole. Just one case, in a state court at that, involving same sex marriage had a significant role in the last election.
The election also will result in a great altering of the ideological split of the courts, and as the report notes, ideology alone is an important determinant in judicial outcomes. And, many of the issues we find most important in some sense (as Alexis Tocqueville told us nearly two hundred years ago) ultimately involve the judiciary.
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* Some have looked down on the term "progressive," feeling it is some weenie form of the word "liberal," which has been defamed so much by the Right that society as a whole has drank the kool aid. A few even have flashbacks to the Progressive Party, which was seen as little more than a cover for the communists, which in itself is just a tad bit exaggerated. (A few of those people addressed in Profiles in Courage were progressives -- I do not think JFK thought he was writing about commies.) I guess one can go back and forth on the matter, but there is something to be said about using "progressive" to help develop a movement for the future. It has that fresh sound to it, doesn't it?
"Liberal" by the way has connotations of radicalism, again given how it has been framed, but in many ways liberals have conservative values that look back to a time before all the current craziness. You know the 1960s. Lol. Seriously, "liberal" traditionally had a more conservative connotation and in a general sense, our whole society is liberal. Something probably can be formulated out of these themes, and if nothing else, the defamation of the word has been outrageous. It is true that I'm not totally comfortable with certain things associated with liberals, including certain government programs and regulations, but "progressives" generally support them as well. So, I guess I will leave things wishy-washy.