an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Playing hardball with Goodwin Liu, or the Gang of 14 deal implodes
Jason's post shrugging his shoulders at the failure to get 60 votes for cloture for Goodwin Liu's nomination to the 9th Circuit misses what I think is the big picture. First, as a threshold matter, Jason doesn't take into account strategic voting. Once Senators know that cloture won't be achieved, there are strategic reasons for various moderate Republicans and Democrats to vote no, even if they would have voted for cloture if there were enough votes. No point being on the losing side and taking unnecessary political risks. So the cloture vote might end up being either 60-40 or something like 52-48. In this context, the difference between 59 and 52 means almost nothing. Indeed, if cloture had been achieved, then the final vote probably would have been well over 60 votes, as we have seen in other nominations where cloture has been achieved.
Second, the big news in the Liu nomination is that the gang of 14 arrangement which governed judicial nominations since 2005 has fallen apart. The Republicans are back to playing hardball on judicial nominations. Jason correctly sees that this means there will likely be no Supreme Court nominations until after the election. But that's often the case close to an election, and there was very little chance anyone would retire before the election anyway. What's more interesting is what happens to lower court nominations in the next year.
In 2005, Republicans and Democrats settled on an approach to solve the impasse over a small number of controversial Bush nominations. In those days, it was the Republicans who said that filibustering judges was unconstitutional, and the Democrats who insisted on protecting the rights of minorities. So lots of Senators are now taking precisely the opposite position they took in the past, and nobody seems to care because, of course, many Senators don't take constitutional arguments in their public rhetoric seriously. Given that they all swear an oath to defend the Constitution, that fact should give us pause, but that's a subject for another blog post.
The gang of 14 arrangement was that Senators from both parties would arrange their votes on cloture so that judicial nominees who got out of committee would proceed to a final vote and there would be no filibusters except in "extraordinary circumstances." That meant a really objectionable candidate, for example, somebody way out of the mainstream.
Now, no matter what you may read in the blogosphere, Goodwin Liu is nothing like this. He's no more liberal than Bush appointees who have sailed through are conservative. In fact, I'd say he's more moderate in some respects. He's taken various liberal positions in various law review articles, but that just means he's a liberal academic and he's smart.
So Senators and pundits came up with various excuses for why there were "extraordinary circumstances." Lindsay Graham insisted it was because Liu vigorously opposed Justice Alito's confirmation. Please. I take it that no Bush appointee has ever opposed a liberal Supreme Court nominee before. These are all makeweight reasons, in the sense that if the political situation were different, these reasons would not be even close to "extraordinary circumstances."
And that's really the point. Political circumstances have changed. We are inching closer every day to the 2012 election. Republicans want to defeat the President. Boy, do they want to defeat the President! They want to whip up their base. The base really cares about judicial nominations. So Republicans are sinking the nomination of a bright, talented, young Asian-American nominee to the 9th circuit.
But why didn't this sort of thing happen in 2007 or 2009? My guess is that the gang of 14 arrangement actually made sense for a while, but it was always unstable. It was a sort of political cartel blocking certain kinds of political entrepreneurship, and cartels are often difficult to enforce, even when people have to defect publicly, as they would in this case.
By 2009, for example, both Graham and John McCain-- members of the original 14-- had defected on one of Obama's first picks, the David Hamilton nomination. Graham and McCain were widely viewed as key players in putting the peace treaty together in the first place. If they were willing to defect, then what is to stop anybody else? In addition, several of the members of the gang of 14 retired or were defeated. As a result, fewer and fewer of the people necessary to enforce the bargain remained. Then the Tea Party began to dominate Republican politics. Liu is likely to be just the sort of person that they would find anathema. And given that Senate Majority Leader McConnell has effectively declared a guerrilla war on the Obama Administration, the reemergence of judicial filibusters was only a matter of time in this very politically poisoned atmosphere.
The question is what will happen next. Perhaps there will be other filibusters, confirming the new status quo. More likely, Democrats will hold off nominating anyone especially liberal, controversial, or attractive-- in the sense that they might be groomed for a Supreme Court appointment some day-- until after the 2012 elections. Note this means that many judicial candidates will still get confirmed, but not anyone prominent like Goodwin Liu. Then, depending on who wins the Presidency, and who controls the Senate, a new deal can be struck.
In the meantime, a lot of good candidates-- like Goodwin Liu-- will not be allowed to serve in the judiciary. That's politics, and that's a shame. Posted
by JB [link]