FORUM

As a father and law professor, I often lose sleep over what young people are likely to learn from recent controversies over judicial nominations. Not much good, I fear. To hear President George W. Bush and Republican senators talk, Democrats have transformed the confirmation process into their worst nightmare; they blame the Democrats in the Senate for the worst crisis ever in judicial selection and particularly for their unconscionable, unconstitutional, and disgraceful tactics in undermining the President and the federal judiciary. Democrats, for their part, charge the President and Republican leaders with lack of candor and hypocrisy, and often complain that relations between the parties, particularly with respect to judicial appointments, have never been worse. With no end in sight to the name-calling, back-biting, and vicious rhetoric over judicial appointments, most young people probably think that the process of judicial selection is badly broken.

Yet, a more positive perspective of the appointments process is more than a dream. As I survey the lessons—both positive and negative—to be derived from developments within the appointments process, I hope it should become clear that vicious conflicts are a choice rather than an inevitability.

Because the media loves conflict, conflict is the first and most obvious lesson many people derive from the reporting on judicial selection. Conflict over appointments is, however, not new. By distributing the appointment authority between the President and the Senate, the Appointments Clause of the Constitution invites conflict; presidents and senators are likely to vie for control over judicial and other appointments. National political leaders are likely to seek an advantage for their respective institutions in selecting judges. Party fealty helps to exacerbate the tensions within the process. They are exacerbated further by the parties’ recognition of the high stakes judicial selection entails—the life tenure judges and justices enjoy enables them to wield significant power long after the presidents who have appointed them have left office. With so much at stake, each side gives no quarter; each appears willing to stop at nothing either to achieve its desired objectives or to thwart the other side from achieving its preferences. Hence, it is not surprising to find conflict over judicial appointments to be as old as the Republic. The Senate rejected one of President Washington’s nominees for Chief Justice of the United States because of his stridently expressed views in opposition to the controversial Jay Treaty. The Senate failed to take final action on at least nine Supreme Court nominations in the 19th century, and generally it has rejected, or failed to act upon, almost 20% of Supreme Court nominations.

Anyone familiar with conflicts over judicial appointments in the past couple of decades knows how vicious they can be. Republicans have been seeking revenge for years for Democrats’ transgressions within the process, including the Senate’s rejection of President Reagan’s nomination of Robert Bork to the Supreme Court in 1987, the Democrats’ failures to allow the Senate to take any final actions on dozens of judicial nominations in the final year of George H.W. Bush’s presidency, and the Democrats’ filibusters against six of President George W. Bush’s judicial nominees. Democrats are angry about the Republican Senate’s unprecedented delays of Bill Clinton’s judicial nominations throughout his presidency, including its failure to allow floor or Committee votes on over 60 judicial nominations in Clinton’s final year in office. Payback has thus become the dominant dynamic within the system. It explains, for instance, the extraordinary fact that the last time a Democrat was appointed to a seat on the U.S. Court of Appeals for the Fourth Circuit in North Carolina was more than two decades ago. Senator Jesse Helms persistently opposed Democratic nominees to retaliate against the Democrats’ obstruction of President George H.W. Bush’s nomination of Terence Boyle to a seat on the Fourth Circuit. Though President George W. Bush re-nominated Boyle to the Fourth Circuit in 2001, Democrats allowed the nomination to lapse while they controlled the Senate.

In addition to the vicious cycle of payback, young people probably marvel over the absence of any consensus among our national leaders on merit. It must be odd for young people, particularly those in law school, to find that Presidents and the Senate cannot agree on what makes someone a good judge or justice. The quality that seems to matter the most to our leaders in selecting judges has not been experience, temperament, academic achievement, or intellect but rather ideology—pre-commitments to certain interpretations or understandings of the Constitution regardless of the facts of particular cases. Again, preoccupation with ideology is nothing new. Virtually every president has been concerned about the impact of his appointments on the direction of the federal judiciary. Stellar credentials have never immunized nominees from scrutiny or opposition; senators have never hesitated to use whatever means their rules and traditions allow them to defeat nominees with first-rate records, including (but by no means limited to) rejecting Robert Bork (in spite of his having served with distinction as a Yale law professor, Solicitor General, and circuit judge); employing a filibuster to force Miguel Estrada to withdraw his nomination to the U.S. Court of Appeals for the District of Columbia (in spite of a dramatic rise from having been an immigrant who could not speak English to the top of his Harvard Law School class, Supreme Court clerk, and successful advocate before the Supreme Court); and refusing to schedule hearings or a Committee vote on Elena Kagan (in spite of her own outstanding credentials culminating in her recent appointment as the Dean of Harvard Law School). It is understandable why many Democrats have been skeptical about President Bush’s claim that he has chosen his nominees solely based on merit and not a litmus test, given Bush’s own record in the process. For instance, he recently named Charles Pickering as a recess appointee, after having twice nominated him unsuccessfully to the U.S. Court of Appeals for the Fifth Circuit, and in spite of Pickering’s having been reversed more times than any other district judge in the circuit and having a mixed record, at best, on upholding civil rights. (Nor was the irony lost on many people that the President’s decision to name Pickering as a recess appointee occurred the weekend before the Martin Luther King, Jr., holiday.) The President also has failed thus far to nominate to the circuit courts anyone who has been openly pro-choice.

A related problem with judicial selection is that neither side appears to take judicial independence very seriously. For years, most political scientists have claimed that judges and justices are not genuinely constrained by the law but rather either vote their policy preferences directly or vote to advance their personal or institutional interests strategically. A superficial glance at the appointments process might lead one to think national political leaders would agree with social scientists that judges merely perform, or vote, in accordance with their predispositions or pre-commitments. The battles over judicial appointments often appear, at least to the uninitiated, to be transparent attempts to control judicial outcomes. Why else would President Bush nominate to judgeships people who have actively worked to dismantle longstanding decisions of the Supreme Court protecting abortion rights, the rights of criminal defendants, strict separation of church and state, or any form of affirmative action? A similar thing could be said about President Clinton’s judicial nominees, who tended (as he suggested) to be people who “looked like America” and were sympathetic to broad constructions of the Bill of Rights. If this is how judicial appointments are made, what does one say to young people hopeful about the possibility of neutrality, or common ground, in constitutional law?

Yet another negative lesson that young people can derive from recent confirmation contests is that each side is hypocritical. Though each side claims to have the Constitution or the law on its side, each appears to be guided by results rather than principles. Take, for instance, the conflict over Democrats’ recent filibusters against several of the President’s nominees. Republicans charge that filibusters against appellate nominees are unprecedented and unconstitutional. Yet, many of the Republicans who have denounced Democrats’ filibusters have previously supported filibusters against judicial nominations and have tried to distinguish (on rather dubious grounds) filibusters against Supreme Court nominees. Moreover, the constitutional grounds for filibustering judicial nominations appear to be exactly the same as those allowing individual senators, committees, or their chairs to take actions precluding floor votes on judicial nominations. All these practices derive their constitutionality from the Senate’s express authority to design the rules for its respective proceedings. If filibusters are unconstitutional, then various counter-majoritarian measures such as negative committee votes or individual holds on Democratic judicial nominees would have to have been as well. While some Republicans have flirted with adopting this argument, they ultimately dropped it once it became apparent it could not be squared with every instance of a committee’s or its chair’s refusal to take action on a nomination, a treaty, or a piece of legislation. The Democrats’ defense of the constitutionality of the filibusters is hard to reconcile with the fact that in the mid-1990s some of the Democrats who now defend filibusters had denounced them as unconstitutional and called upon the Republican leadership to change the Senate’s Rules to make it easier to defeat filibusters. The Republican leadership took no action then, though it ironically now supports doing what Democrats asked in vain for them to do in the 1990s. Indeed, each side in the recent filibuster debate has tried to make its case by quoting supporting statements once made by the other side’s leaders.

These are bleak lessons, but they do not tell the full story. History is replete with positive lessons as well. First, the Appointments Clause was designed to invite not just conflicts but also accommodation, in which each side makes concessions to the other for the sake of a greater good. Thus, most presidents have filled at least some judgeships with nominees suggested, or supported by, the other party’s leaders. (Some presidents even have gone so far as to nominate to the Supreme Court people who belonged to the opposing party!) Divided government has been an especially propitious time for contending sides to reach accommodations. For instance, President Clinton regularly consulted with Republican leaders on judicial nominations, and even agreed at one point to Senator Hatch’s preferred nominee for a district court judgeship in Utah in order to smooth the way for the rest of his nominations. Similarly, President Bush’s first set of circuit court nominees included two people whom President Clinton had initially nominated to the circuit courts but on whose nominations the Republican Senate had never taken any action.

A second popular dynamic is choosing judicial nominees who can command widespread consensus. President Clinton often achieved consensus by avoiding contentious nominations. He chose his two Supreme Court nominees only after he had cleared them both with the Republican leadership. Ruth Bader Ginsburg and Stephen Breyer thus enjoyed quick, smooth confirmation hearings. President Bush, too, has often achieved quick, widespread consensus, though he has rarely called attention to it. In fact, Democrats have acquiesced to the vast majority of President Bush’s judicial nominees. In spite of President Bush’s protestations of a crisis in judicial selection, he has achieved, with Democratic help, a record pace in getting his nominees through the Senate and a record number of judicial appointments approved for a president at this point in his presidency.

Yet another positive lesson has to do with the implications of the failure to dismantle the filibuster. Throughout most of 2003, Republicans tried in vain to mount a successful assault on the constitutionality of Senate Rule XXII, which requires at least 60 senators to invoke cloture generally and at least two-thirds of the Senate to end a filibuster against a motion to amend Rule XXII. In hearings before the Senate Judiciary and Rules Committees, Republican witnesses proclaimed Rule XXII unconstitutional (primarily on the ground that it was unconstitutionally entrenched; it allowed, in other words, a past Senate to prevent a majority of the current Senate to adopt the rules under which it preferred to operate). In June 2003, the Rules Committee (with all Democrats absent) approved 10-0 the Senate Majority Leader’s proposal to effectively empower a majority within the Senate to end filibusters against judicial nominations.

No one knows for sure why the full Senate has not yet acted on the recommendation, but the consequences of the Senate’s failure to amend Rule XXII are clear. First, the failure to approve the recommendation is consistent with the Senate’s invariable practice of amending its rules in accordance with its rules. Every amendment to Rule XXII was passed in accordance with the Senate’s rules. The most recent proposed change to Rule XXII could only have been achieved if a majority of the Senate were willing to deviate from the unbroken practice of amending Senate rules in accordance with the Senate Rules. The Senate generally defers to its precedents and gives greatest deference to an unbroken tradition or practice. Clearly, the votes were not there to deviate from Senate precedents in the debate over the filibuster.

Second, Rule XXII has served its purpose. It was designed to facilitate stability and order within the Senate by promoting change through bipartisan support and to preclude its extinction in the heat of the moment. It has been further designed to encourage presidents to seek out common ground with the substantial minority within the Senate opposed to the nominations it has chosen to filibuster. Though President Bush came into office promising to be “a uniter and not a divider,” more than a few of his nominations have been extremely divisive. He has chosen, for reasons that will likely become more apparent this fall in his re-election campaign, to endure a contest over his nominees rather than to opt for some who might have been at least as qualified but more appealing to Democrats.

Lastly, the movement to dismantle the filibuster is far from over. The most significant check on filibusters is the political accountability of those supporting and opposing them. It is heartening to know that the Constitution vests final authority over some questions not in federal judges but in politically accountable leaders. The filibuster is one of many such matters, including the questions of whom to nominate and to confirm as federal judges. For those, like me, who lose sleep over the filibusters or the viciousness of recent confirmation contests, they should recall what the sign that sat on President Truman’s desk said—“The buck stops here.”

April 15, 2004

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