Keith E. Whittington

The politics of federal judicial appointments is as heated and as high-profile now as it has ever been in American history. For an important segment of both political parties, the federal courts have become a critical policymaking institution, and as a result both parties have been pushed to treat judicial appointments as an important political battleground.

Political scientists have long argued that courts are inevitably political institutions. They decide important questions of public policy, and they are constituted by political means. Federal judges might sit one remove from electoral politics, but that is not enough to place them outside of politics. Voters, interest groups, and elected officials have not always been deeply motivated to focus their attention and energy on the courts, but courts have periodically taken the center stage of American politics.

The courts are the third branch of government laid out in the U.S. Constitution. While individual judges are made independent from the elected branches of government, the judiciary as a whole is largely made dependent on the goodwill of the legislature and the executive. The courts have been a political prize to be won and a lagging indicator of political success. Through that political influence, the effective constitutional rules of the political system itself are ultimately responsive to political currents. As Jack Balkin has noted, a party that can win the “constitutional trifecta” and control all three branches of government has enormous opportunities to reshape the political landscape.

Political parties can most directly shape the federal judiciary by placing judges on the bench. They can do that through the familiar process of selecting like-minded judges to fill vacancies, but they can also do that through the less-familiar process of increasing the number of vacancies to be filled by expanding the bench. The American political parties have periodically sought to create a friendly federal judiciary by creating more judgeships. As Justin Crowe had detailed, partisan and policy calculations have rarely been absent from congressional decisionmaking on whether to expand or reorganize the federal courts. President Franklin Roosevelt’s ill-fated proposal for “judicial reorganization,” or less euphemistically “Court-packing,” not unlike the Federalist Party’s lame-duck judicial reform of 1801, became an infamous case of political overreach. The reaction to those efforts to manipulate the federal judiciary for partisan ends helped construct our “small-c constitution,” the norms and practices that bolster and extend the rules formally entrenched in our textual Constitution. We have taken the lesson of the Court-packing plan to be that elected officials should not push too hard to reshape the courts.

But what counts as “too hard”? In the summer of 1968, Chief Justice Earl Warren and President Lyndon Johnson tried to insure that a Democratic appointee would succeed Warren, even as the Democratic presidential hopes in 1968 looked increasingly dim. Warren’s strategically timed retirement was called out for the political ploy that it was, and even a Democratic controlled Senate balked at confirming Abe Fortas as chief justice on the eve of the election, and so the seat fell to the Republican Richard Nixon to fill after the inauguration. On the other hand, the Democratic Party took advantage of their return to unified control of Congress and the presidency after Watergate to reorganize and expand the federal judiciary. President Jimmy Carter was somewhat unlucky in not seeing a Supreme Court vacancy during his one term of office, but thanks to Congress he was able to fill an unusually large number of seats on the federal circuit courts. Since the 1980s, Republicans have been routinely charged with trying to “pack the courts,” not because they have been manipulating the number of available judgeships but because they have been unusually focused on the judicial philosophy of their nominees when filling routine vacancies.

The current political era has been remarkable not only because both parties have been focused on winning the constitutional trifecta and shaping the courts, but also because neither party has been particularly successful in doing so. In the past, these partisan battles over the federal judiciary have usually been decisively won by one side or the other. The Repeal Act of 1802 put an end to the Federalists’ “midnight appointments.” The Jacksonian reorganization of the courts gave the South a working majority on the bench. The Republican reorganization of the courts during the Civil War put the Court in a Northern hammerlock. The electoral success of the New Deal coalition smashed conservative obstruction in the federal courts.

Since the crack-up of the Democratic coalition in the 1960s, however, American politics has mostly been characterized by stalemate and gridlock. Partisan rotation, divided government and happenstance have extended the fighting over the courts rather than allowing one side to simply claim victory. Republicans have been able to push the courts in a more conservative direction, but their relationship with the U.S. Supreme Court has been as much one of frustration as cooperation. Justice Antonin Scalia’s departure from the Court at the tail end of Barack Obama’s administration and the likely prospects of a Hillary Clinton electoral victory might have been expected to finally tilt the balance of the Court and create a stable liberal majority, but late-term Republican control of the Senate and Clinton’s improbable defeat wound up extending the impasse.

With the Supreme Court in limbo, partisans turned their attention to the federal circuit courts. Presidential nominations to the lower federal courts had long been routinely confirmed. Circuit court nominations only occasionally found themselves mired in controversy. That has changed, and the change is no longer recent. Ever since the Monica Lewinsky scandal consumed the latter portion of Bill Clinton’s presidency, Senate obstruction of circuit court nominations has been at a record high. Regardless of administration or the partisan composition of the Senate, presidential nominations to fill circuit court vacancies could once have been expected to end with Senate confirmation. Since the late 1990s, the odds of a circuit court nomination being confirmed have been little better than a coin flip.

For over a quarter century, the Senate has obstructed circuit-court nominations at a historically unprecedented rate. The new obstructionism reflects a shift in both presidential and Senate behavior. Beginning in the summer of 1991, the Democratic-controlled Senate dramatically slowed the pace of confirmations. With more a year left in his presidency, George H.W. Bush found his ability to place judges on the circuit courts to be significantly reduced. No similar slowdown can be seen at a comparable point during Ronald Reagan’s second term of office, when he also had to deal with a Senate under the control of the opposite party. When the Republicans seized control of the Senate during the midterm election of President Bill Clinton’s first term of office, they initiated a similar slowdown of the president’s circuit-court confirmations a year before he faced reelection. The Republicans allowed the pace of confirmations to pick up again after the president won reelection, but when confirmations again began to slow a new election loomed Clinton took the unusual step of blitzing the Senate with an unprecedented number of election-year and lame-duck circuit-court nominees. Although such a maneuver might have been expected to succeed if the same party controlled both the White House and the Senate, it was doomed to failure when the Senate was in the opposition’s hands and the rate of failed nominations spiked. President George W. Bush entered office unusually prepared to send judicial nominations to the Senate. The Senate had traditionally been very accommodating to presidential nominations at the opening of a presidential term, but the newly Democratic Senate in this case was unusually obstructionist. The rate of confirmation has never recovered, and the remainder of both Bush’s and Barack Obama’s presidencies were characterized by high rate of failures.

As a result of this unusual level of Senate obstruction, George H.W. Bush left a surprisingly small mark on the circuit courts. During his single term as president and aided by the 1978 judicial expansion, Jimmy Carter filled 50 percent more circuit court seats than did Bush.  But Clinton, George W. Bush, and Obama also appointed fewer circuit court judges than would have been expected for two-term presidents. The degree of Senate obstruction during this period is inflated a bit by the aggressiveness of the presidents in making nominations (e.g., George W. Bush sent twice 50 percent more nominations to the Senate than did Ronald Reagan), but the overall effect has been to leave the courts understaffed and to reduce the number of judges that either Democratic or Republican presidents could put into service.

The story of Senate obstruction of circuit-court nominations over the last several presidencies is only partly a story of divided government. The Senate and the White House have been controlled by different parties for a significant portion of the time since the final years of the Reagan administration, but there have also been several periods of unified government. George H.W. Bush did not see a unified government during his single term of office, but Bill Clinton, George W. Bush, and Barack Obama all enjoyed years of same-party control of the Senate. Unlike the modern U.S. House of Representatives, the U.S. Senate has traditionally allowed many avenues for obstruction by the minority party. A committed out party can find ways to gum up the works. Prior to the Monica Lewinsky scandal and President Bill Clinton’s impeachment, they mostly had not done so when it came to circuit court nominations.  Divided party control dampened the rate of Senate confirmations, but prior to 1998 even opposite-party Senates were relatively willing to confirm circuit court nominations. Since 1998, however, even same-party Senates have found themselves unable to confirm judges. When presidents have faced opposition-controlled Senates since 1998, circuit-court confirmations have been at a near standstill.

Entering the twenty-first century, the Senate had become increasingly dysfunctional on the question of circuit-court confirmations. The increased political salience of lower-court judicial appointments intersected with growing political polarization in the Senate (as well as in the House). Minority obstruction of judicial confirmations through withholding blue slips and threatening filibusters might not have had much staying power if a significant component of the two parties overlapped ideologically. Finding a path to 60 votes for cloture might have been manageable if the more liberal wing of the Republican Party and the more conservative wing of the Democrat Party were largely in agreement and shared a similar perspective and electorate. That is no longer the case. The distribution of senators is now distinctly bimodal. The gap between the Republicans and the Democrats is substantial. Moreover, the ideological distance that would need to be travelled to get to 60 votes is now very large.

For either party in the current Senate, constructing a filibuster-proof majority requires reaching far into the ideological center of the opposite party. That is simply a bridge too far. It is possible that the threat of minority obstruction might lead the president to moderate his judicial nominations and seek compromise candidates who could command 60 votes, but in the current environment it is not clear that any such compromise candidates exist. Requiring presidents to sell a judicial candidate to something close to the median senator of the opposition party would risk losing significant numbers from their own party and would negate much of the significance of winning either the White House or majority control of the Senate.

Given that political reality, it is no surprise that the Senate has instead moved to rein in the ability of the minority party to obstruct judicial confirmations. In 2013, the Senate Democrats under the leadership of Harry Reid nuked the filibuster option on circuit court nominees in order to facilitate the ability of President Obama to fill judicial vacancies when his own party controlled the Senate, and the president swiftly took advantage of the new rules. When the Democrats lost the chamber as a result of the 2014 elections, judicial confirmations largely ground to a halt. The current Republican move to curtail the ability of individual senators to use the blue slip to hold up nominees is the natural follow-up to Reid’s effort to streamline the confirmation process.

The question now is what comes next. The Senate is now able to confirm judicial nominees when the same party controls both the White House and the Senate, returning us to an efficiency that would have been familiar for most of the twentieth century.  There is no reason to think, however, that the Senate will be able to return to twentieth-century norms when we have a return to divided government. The recent rule changes have allowed the Senate majority to work around obstructionist minorities, but party polarization will mean that few judicial nominees will be satisfactory to a Senate controlled by the opposition party. Will a Senate controlled by the opposition party refuse to seat circuit-court nominees at the beginning of a presidential term in the same way that it has recently refused to seat those nominees at the end of a presidential term, or will presidents be able to enjoy a brief honeymoon even when working with the opposition party? Is a Senate willing to allow vacancies to accumulate in the lower federal courts rather than confirm a judicial candidate advanced by the other party’s president be similarly willing to allow a vacancy to sit on the U.S. Supreme Court, not just for a period of months but for a period of years?

The norms and practices of the small-c constitution are ultimately sustained and enforced by political means. If extreme obstruction in the Senate proves to be a winning electoral strategy, then senators will engage in more of it. If presidents are able to hold senators accountable to the electorate and voters are willing to punish senators for obstructing judicial nominees, then senators might return to the old ways and once again vote to confirm judges nominated by the other party. If proposals to manipulate the size of the federal judiciary so as to create more seats for a friendly president to fill are electorally costless at worst, then the courts will be made into a partisan plaything. It will be difficult enough to preserve the independence and authority of the courts in the current politically polarized environment. It will be far more difficult if senators cannot find a way to allow judicial selections favored by their opponents to take a seat on the bench and insist that the only acceptable court is a partisan court. Political leaders on both sides of the partisan aisle need to recognize that the escalation of partisan conflict over the judiciary will ultimately only serve to damage the courts. Proposals to pack the courts by altering the size of the judiciary and suggestions that Senate majorities should deny opposition presidents the ability to appoint judges are subversive of basic constitutional norms that have worked over time to prevent constitutional crisis. The constitutional system functions best if the formal rules are supplemented by a robust set of norms and practices that deter government officials from using all the political weapons at their disposal. We should be cautious not to allow the prospect of short-term political gain to lead us into actions that could threaten the long-term blessings of the constitutional order.

Keith E. Whittington is William Nelson Cromwell Professor of Politics at Princeton University. You can reach him by e-mail at kewhitt at Princeton.EDU