Robust Confirmation Battles May Be Here to Stay

I appreciate greatly the wide-ranging debate we are having on the topic of judicial nominations, and find much with which to agree in each of my fellow writers’ prescriptions. 

There seems to be an underlying current, though, that swift confirmation of well-qualified judicial nominees represents the overarching goal. Certainly, superbly qualified lower-court nominees from all sides of the philosophical spectrum have been blocked, ranging from Bernard Siegan to Miguel Estrada to Goodwin Liu. No doubt, the more a potential nominee writes and takes provocative positions, the less likely he or she is to survive the confirmation process, which is a shame. Ironically, sometimes blocked nominees come back to haunt those who thwarted confirmation. Jefferson Sessions, for instance, now sits in judgment of judicial nominees on the Senate Judiciary Committee after his federal district court nomination was rejected. Goodwin Liu now sits on the influential California Supreme Court and remains a potential nominee to the U.S. Supreme Court in a future Democratic administration.

But if you are a believer in small government – or for that matter, big government – the swift confirmation of well-qualified judicial nominees should not always be the paramount goal.  Because federal judges properly enjoy lifetime tenure, those with a dog in the fight (and increasingly we all have a dog in the fight) need to be engaged in the process. The difference between having Justice Anthony Kennedy rather than Justice Elena Kagan as the swing vote on the Supreme Court, I would argue, is far more consequential in the long run than who occupies the White House.  The federal courts of appeals are also important both because few of their decisions are reviewed by the Supreme Court and because the judges serve as a farm team for the high court.

Michael Teter argues that the increased stakes are not a consequence of the growing size of the federal government; after all, confirmations have proven more cumbersome even under the government-shrinking (if only!) President Barack Obama.  But Obama’s signature legislative triumph, the federal healthcare law, alone creates hundreds of new agencies, each of which in turn creates myriad opportunities for mischief and therefore litigation.  (One exception, the massively powerful Independent Payment Advisory Board, is cleverly insulated from judicial review. This is one of the subjects of the Goldwater Institute’s Coons v. Geithner lawsuit, which soon will be argued in the Ninth Circuit.)  And the sweeping expansion of the national security apparatus, progeny of both George W. Bush and Barack Obama, has provoked lots of lawsuits as well.  As the scope of government expands, whatever its size, so too will the need for judicial review – and therefore, the importance of who is doing the judging.

The modern tactics of judicial warfare have their origins in the opposition to some of President Richard Nixon’s Supreme Court nominees and were further developed in the confirmation battles over Robert Bork and Clarence Thomas.  At the time, the exaggeration of Robert Bork’s views seemed outrageous; yet now it seems almost tame.  At least it was confined to a debate over ideas, as opposed to the reprehensible ends-justify-the-means tactics used against Thomas.

I agree with Teter that procedural obstacles such as blue slips and other anti-democratic devices should not be used to block judicial confirmations. Those battles should be fought in the light of day.  Judicial nomination hearings and votes can be powerful teaching moments.  But nor should we retreat from a spirited debate and public campaigns over judicial nominations.  Superb qualifications are necessary but not sufficient for confirmation. Fidelity to the Constitution is paramount.

Ultimately I agree entirely with John O. McGinnis that selecting judges based on adherence to original intent would solve a great deal of problems.  But Democratic presidents rarely choose such nominees.  And the Left opposes many Republican nominees precisely because they do hold such principles.  After all, how can the courts be transformed into legislative and executive bodies if they believe in originalism?  So we are left with the question of what process can best achieve the dual objectives of appointing highly qualified judges who believe in the rule of law.

In the end, as I argued in Two-Fer, it comes down to electing good presidents (and with regard to the state judges who decide the vast majority of cases, good governors).  But until the scope of government recedes, it also means robust judicial confirmation battles.

Also from This Issue

Lead Essay

  • How the Courts Got Dumbed Down by John R. Lott Jr

    John R. Lott, Jr. lays out the evidence that the judicial confirmation process is broken. Nominations are taking longer on average. They’re growing nastier. And Lott’s research shows that the most objectively qualified nominees are the ones who have it worst. The reason why is easily understood: Other things being equal, no one, whether a Republican or Democrat, wants to see the smartest, most persuasive of one’s ideological opponents on the bench. Lott’s remedy is a familiar one to libertarians: Reduce the size and scope of judicial activity in all of our lives. Lower the stakes, and the conflict will ease. This, though, can only be done by reducing the scope of the federal government itself.

Response Essays

  • Senate Rules and Norms, Not the Size of the Federal Government, are to Blame for the Broken Judicial Confirmation Process by Michael Teter

    Michael Teter agrees that the judicial confirmations process is broken, along with much else about the legislative process. The whole thing, he argues, is a problem. But to him, the root of the problem isn’t big government: Teter argues that the rules and norms of the Senate delay action in a wide variety of areas, and not the growth of government. He describes the recent end of nomination filibusters as a good step toward fixing the problem, and he recommends further changes that will speed up the appointment of judges.

  • Judicial Nominations and the Freedom Movement by Clint Bolick

    Clint Bolick agrees that the growth of government has made the judiciary more influential. But he recommends that libertarians take advantage of the opportunity it presents: Advocates of economic and personal liberty have lately enjoyed some measure of success in the courts, thanks in part to organizations like the Federalist Society, which has done much to promote qualified judicial candidates. We owe it to ourselves to capitalize on the importance of the modern judiciary.

  • Originalism Can Help Solve This Problem by John O. McGinnis

    John O. McGinnis argues that the real problem with our courts lies in their lower echelons: The Supreme Court consists of manifestly qualified and able judges, all of whom attended our top two law schools, among their other impressive qualifications. But at the lower end, the public isn’t paying attention, and nominees who are otherwise qualified can be sunk for political reasons. McGinnis applauds the elimination of the filibuster for nominations, but he suggests that a cultural change may also be in order: the return to originalism in judging and legal scholarship. Although an originalist judge may have some latitude for interpretation, that latitude is greatly reduced when compared to a living constitutionalist judge. This, McGinnis suggests, will reduce politicking on the courts.

The Conversation