Thursday, May 01, 2003


A Fight Over Judicial Nominations in Extraordinary Times

Responding to my previous post on the judicial appointments process, Juan Non-Volokh points out that following the Fortas nomination, Democrats blocked two of Nixon's appointees in the 1970's (although the case is somewhat different because the Haynesworth and Carswell nominations actually came to a vote) and that in 1986, when the Dems regained the Senate, they began a practice of slowing down judicial appointments in the last two years of both the Reagan and George H.W. Bush presidencies. Hence my claim that the Dems rolled over and played dead until the George W. Bush presidency is, in Juan's words, "just plain wrong."

It's not clear how much Juan and I disagree, since I was looking at the years from 1992 to the present, and he's looking at the period from 1968 onwards. My view is that slowing down of judicial appointments-- which both the Dems and the Republicans did before the Clinton Presidency, is within the rules of the game, as long as it doesn't go too far. In fact, an important part of the checks and balances that come from having a Senate with opposition politicians is that the Senate can put up some resistance to partisan entrenchment by the President's party with the goal of generating more moderate judicial appointments from the President. Whether Juan agrees with me or not on this, I continue to think that the contemporary Democratic Party has been much more passive than they should have been and the Republicans have had the zeal of a party that has been taken over by a social movement. My sense is that Clinton generally responded to Rebublican delaying tactics by nominating more moderate candidates and avoiding nominating too many liberals. George W. Bush has responded to Democratic delays by sticking to his guns and continuing to nominate candidates who are strongly ideological. By focusing only on the Senate's behavior, Juan has neglected how the separation of powers works-- how the President responds to challenges from the Senate. It takes two to tango, and it takes two branches of government to cause a train wreck.

Juan concludes:

If Balkin wants to claim that Democratic hardball in judicial fights is a response to the 2000 election controversy, he has to explain why Democrats were slowing down judicial nominations in the 1980s and early 1990s.

My explanation is that what the Dems were doing in the early 1980's and 1990s is part of ordinary politics. What the Dems have doing following the 2000 election-- particularly the Estrada fillibuster-- is extraordinary. Fillibusters on judicial nominations are rare. Don't get me wrong-- the Dems have confirmed a number of Bush's judicial appointments. But they have also fillibustered Estrada, and that is something you just don't see every day.

Juan doesn't like what either party has been doing, and he doesn't like fillibusters. By contrast, I'm somewhat more tolerant of delaying the most strongly ideological nominations by a President of the other party as a signal that the President and the Senate should come to an accomodation. In my view, that's part of the way that the two branches check and balance each other.

I guess that the biggest difference between Juan and myself is how to view the meaning of current historical events. Juan sees the current strife as an example of accelerating misbehavior by the two major political parties during a time of essentially normal politics. My view, by contrast, is that we are no longer in an ordinary period of constitutionalism. The election of 2000 was a trauma, an extraordinary constitutional event. To be sure, Bush could have diffused the trauma by nominating more centrist candidates, thus signalling that he would deal with the contested election by forging an accomodation with the other party. Instead, he pushed for strongly ideological candidates in order to complete a constitutional revolution. Not only did he do so without a popular mandate as Roosevelt had, but, in the minds of many Democrats (including myself, I might add), he did not even win the election. The Dems view this attempt to amend the constitution through partisan entrenchment as deeply unfair. They see the Constitution as in danger, about to be taken over by ideological extremists. They love the Constitution as much as the Republicans do, and they view the Constitution as under siege. That is what explains how a party of softies suddenly got a spine, and did what neither party has done for more than a generation. Extraordinary times lead to extraordinary measures.

I think that many folks on the other side of the political divide don't quite get how angry many Dems are about the election. They well understand that Dems are upset about losing the Presidency, but what they don't quite understand is that it's more than just being sore losers-- the Dems think that something *illegal* happened. They don't get how seriously many Democrats feel that our constitutional system has been hijacked by people they don't trust. The Bush Administration, in turn, has done little to reassure them that it will play nice or play fair, or that it will use its powers with restraint. Indeed, the Bush Administration has cultivated a reputation for taking no prisoners. (Or to put it another way, the only prisoners the Bush Adminstration takes are being held at Guantanamo Bay.)

If you look at current events from this perspective, I think you can see why the confirmation process has broken down. It has broken down because trust has broken down, and trust is what keeps the wheels of government working smoothly even when people have strong disagreements about public policy.


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