I appreciate Mr. Lott’s response to our disagreement about the causes of the broken confirmation process. To be clear, I don’t necessarily dispute that public officials place greater significance on judicial appointments than in the past and that that may account for the well-documented increase in obstruction and delay. But that’s focusing on a question that has no (practical) solution. It’s seeking to explain why senators make the judicial confirmation process so difficult. I don’t believe there’s just one answer. It may be that some senators are most guided by the concerns Mr. Lott raises about the size and scope of the federal government. It may be that others are more concerned about the social issues that he and I both noted – and that have nothing to do with the size of the federal government. And it may be that electoral politics plays an important motivating factor.
Given that these factors are so multifaceted and amorphous, it makes more sense to focus on how senators have managed to break the confirmation process. The answer, I suggest and John McGinnis seems to agree, is the abuse of Senate rules and norms. Yes, those procedures and customs have existed for quite some time, but their abuse is a more recent phenomenon (and not limited to Republicans, to be sure). Fix those rules so that those with an incentive to obstruct confirmations no longer have the tools to do so, and the judicial confirmation process becomes much smoother.
Mr. Lott’s suggestion – shrink the size of the federal government to address the broken judicial confirmation process – is an ideologically driven solution to a non-ideological problem. Case in point: Mr. Lott says that the obstruction and delay during President Obama’s first term was driven by the administration’s failure to nominate judges in a timely fashion. There’s certainly some truth to the fact that this White House did not nominate judges as quickly as past presidents. (Of course, there’s a chicken-and-egg question here that Mr. Lott ignores: why nominate someone who we know is going to get blocked? Moreover, part of the delay is due to the fact that President Obama took the Senate’s “advise” role more seriously than his predecessors and many senators exploited that opportunity to delay the nomination process.) Still, the numbers support Mr. Lott’s claim that President Obama made judicial nominations at a slower pace that past presidents. But, then, that begs the question: if that’s the problem, how is that at all linked to the size of federal government? The answer: it’s not.
Additional examples abound of the disconnect between the problem and Mr. Lott’s proposed solution. The most significant and contentious periods of debate about the proper size of the federal government and the role of the judiciary in limiting governmental power (late 1800s and during the New Deal era) were not accompanied by a broken judicial confirmation process like what we see now.
Finally, it’s important to note the tacit – or maybe it’s even explicit – acknowledgement in Mr. Lott’s piece. Those who have lost the debate about the size of the federal government are retreating to the judiciary, in hopes that activist conservative judges will undo what the democratic branches have done. At the very least, it would be valuable for those fighting for a smaller government to heed Clint Bolick’s admonition to stop calling for a less activist judiciary.