Balkinization  

Wednesday, April 30, 2003

JB

Why the Confirmation Process is Broken

I've said very little about the fights over Miguel Estrada and other Bush judicial nominees. Howard Bashman has had exemplary coverage of the issues for those who are interested. The decision by Democrats to fillibuster some nominations and hold up others is explicable in part by the fact that the Republicans did not behave themselves very well during the Clinton years. But I think something else is going on.

Generally speaking, much constitutional change occurs not through amendments under Article V but through interpretation by Article III judges. The best way to change the Constitution is through stocking the courts with your ideological allies, a process that Sandy Levinson and I call "partisan entrenchment." Some presidents make judicial appointments as political favors, or to reward friends. But some presidents consciously set out to restock the courts according to an ideological vision. Roosevelt's Supreme Court appointments, for example, were designed to give constitutional legitimacy to the New Deal. The sea change in constitutional understandings that occurred after 1937 is due less to the Court's famous "switch in time" in West Coast Hotel and NLRB v. Jones and Laughlin than to the fact that by 1940 Roosevelt had been able to replace several conservative jurists with New Deal acolytes. For better or for worse, this is how our Constitution changes.

Of the two major political parties, the Republican Party has been considerably more devoted to the goal of partisan entrenchment in recent years. That is because the conservative social movements of the past thirty years, which helped the Republicans gain repeated electoral victories, saw the federal courts, and particularly the Supreme Court, as liberal elite institutions out of touch with popular morality and American values. For this reason, Reagan and the two Bushes have tended to value ideological purity in judicial appointments somewhat more than Clinton did. Republicans, or at least the hard right of the party, really cared a lot about judicial appointments, and wanted to change the Constitution to their way of thinking. To a considerable extent they have succeeded, but not in all respects. There is still a great deal more work to be done.

The Republican strategy of delaying Clinton's appointments was part of this crusade to remake the courts. Many Republicans didn't think Clinton deserved to be president in the first place, and they quickly recognized that he could be pushed around. So they fought hard to keep many of his nominees from getting a hearing. And they succeeded in a number of cases. Elena Kagan, who is going to be the next Dean of the Harvard Law School, was nominated to the D.C. Circuit, but never got a vote. (Incidentally, had she gotten a chance, President Bush would not have been able to nominate Miguel Estrada to fill the same vacant slot on the D.C.Circuit.)

Until the Bush Presidency, the Democrats tended to roll over and play dead when the Republicans played hardball on judicial appointments. Why did things change? The reason is simple: The election of 2000 infuriated their base and convinced many Democrats (yours truly included) that a serious miscarriage of justice had occured (more about that here). Five conservative justices on the Supreme Court had handed the Presidency to the man who would appoint more conservative Republicans to be their colleagues and successors. Once Bush took office, he made clear that he would not govern from the center; rather he would govern from the right, and his judicial appointments contained many strongly ideological conservatives. It became clear to the Democrats that the Republican agenda of stocking the courts with strongly conservative ideologues would continue apace, and even be accelerated during the Bush administration.

The view among many Democrats was that the election had been stolen, and thus the power to appoint judges and Justices had been improperly given to the Republican Party by five conservative Republican Justices. Most Democrats in the Senate did not openly talk this way, since they well understood that the public did not want a continual rehash of the election, particularly after 9/11, but they thought it nevertheless. And many were particularly incensed that Bush would use the legitimacy he gained as Commander-in-Chief arising out of 9/11 to push for strongly ideological appointments to the judiciary. For this reason they thought it important to indicate to the Republicans that they would resist what they regarded as the most egregious appointments at the circuit court level. In other words, I think that the broken down judicial appointments process is not just payback for Orrin Hatch's stonewalling during the Clinton years. I think it is also due in part to outrage at the election, and outrage at the Supreme Court's apparent conflict of interest in handing the Presidency to the party that the members of the Court's five-person conservative majority preferred.

If, as I suspect, the 2000 election is an important, although unspoken part of the story of judicial appointments, then we can expect that there will be a particularly vigorous fight over the next Supreme Court nomination, particularly if the person who retires is a swing Justice like O'Connor or a moderate-to-liberal like Stevens. Many Democrats do not want the five conservatives on the Supreme Court to get away with what they regard as a particularly atrocious deed. Republicans can pretend that Democrats have put this aspect of the past behind them, as Republicans themselves have. But this sort of trauma inflicted on one of the two major political parties does not go away so easily.

I have said before that election of 2000 is like Poe's tell-tale heart. Many people think that the election is ancient history. But in my view the election, and the felt sense of grievance by many Democrats, frames a great deal that is occuring between the two parties today, particularly on judicial appointments.

The Democratic Party was originally assigned the donkey because the donkey was thought to be rebellious and the Democrats were the party of the secessionist South. The Republican party was assigned the elephant because they had long memories about the Civil War, and the joke was that they never wanted people to forget about what the Democrats did. I think that the mascots probably should be reversed now. The Republicans have become the stubborn rebellious mules, and the Democrats are going to be the ones with the long memories.


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