The Volokh Conspiracy

In a recent column, Harvard Law Professor Cass Sunstein argues that Republican senators who have filibustered some of Barack Obama’s judicial nominees are more to blame than Democrats who previously filibustered GOP nominees because the Democrats only tried to block nominees who were “out of the mainstream,” while the GOP targeted any nominees whom they “strongly disagree” with on constitutional issues. Sunstein does recognize that “Senate Democrats deserve a fair share of the blame for this dismal situation” because “their use of the out-of-the-mainstream test sometimes veered disturbingly close to the disagreement test.” But he claims that the GOP has gone further than the Democrats did.

Sunstein’s critique is overdrawn. If the Republicans really tried to filibuster any Obama nominees with whom they have strong disagreements, they would have filibustered virtually all of them, not just a few. In reality, they have targeted nominees who they thought were even more liberal than the average nominees put up by a Democratic administration and/or had a “paper trail” that made them unusually vulnerable to attack. Democrats pursued a similar strategy during recent Republican administrations.

Most of the nominees that Democrats aggressively opposed during the Reagan, Bush I, and Bush II administrations were well within the mainstream of modern conservative constitutional thought. That was certainly true of high-profile cases such as Miguel Estrada and Peter Keisler. Similarly, most of the Democratic nominees targeted by Republicans under Clinton or Obama were well within the mainstream of modern liberal constitutional theory.

The underlying reality here is that there is a deep chasm between mainstream conservative views on constitutional interpretation and mainstream liberal ones. The standard-issue conservative Republican jurist believes that the Constitution provides extensive protection for gun rights and property rights, that the courts should enforce significant federalism-based constraints on Congress’ powers, that all or most affirmative action programs violate the Fourteenth Amendment, that Roe v. Wade should be overruled, and that there is no general right to privacy in the Constitution. The standard-issue liberal Democratic jurist thinks that all of the above is wrong. Each side believes that the other side is not only wrong about some particular issues, but has a fundamentally defective approach to constitutional interpretation and the role of judicial review. Much of what the conservative mainstream believes about constitutional law is completely anathema to the liberal mainstream, and vice versa.

Yet both sets of views are clearly within the “mainstream” of their respective parties. And both also enjoy substantial public support. I won’t run through all the relevant survey data here. But both liberal and conservative positions on most of the above constitutional issues have considerable appeal (usually at least 30-40 percent of the publidc). Neither is confined to a small clique of “extremists.”

Given the deep divide between the conservative mainstream and the liberal one, it is no surprise that the two sides have gradually escalated their efforts to impede the other’s judicial nominees over the last thirty years. If you think that the other party’s nominees are not just suboptimal but threats to fundamental constitutional principles, you are likely to seize on any possible tools that could be used to block them.

Once we recognize that the issue here is not a conflict between “extremists” and “the mainstream,” but one between two mainstream views that are very far apart, there are three reasonable responses to the situations. One is co-blogger Jonathan Adler’s view that both sides should abjure the use of the filibuster and other delaying tactics, and perhaps also stop opposing technically qualified nominees on the basis of their judicial philosophy. Another (closer to my view) is that both sides are equally entitled to consider nominees’ views and to use any blocking tactics permitted by the rules of the Senate. The Senate can, of course, change its rules. But until they do so, it is not wrong for either side to exploit them for the purpose of opposing judicial nominees who they believe are likely to make badly misguided decisions should they get on the bench.

Finally, partisans on each side can argue that their side is justified in using aggressive tactics and the other is not because the former is right about the constitutional issues in dispute, while the latter is wrong. Just as just wars have a different moral status from unjust ones, so the use of the filibuster against nominees who are badly wrong about key constitutional issues is more legitimate than its use against those who are right.

But there is a big difference between distinguishing between nominees with right and wrong views and distinguishing between those who are inside and outside of the mainstream. A mainstream view of the Constitution can be badly wrong. Indeed, if mainstream liberals are right about constitutional interpretation, that implies that the mainstream conservative view is badly wrong, and vice versa. Similarly, an extremist view can be correct. Between, say, 1890 and 1930, the view that the Constitution bans racial segregation in public education was clearly an “extreme” one. Ditto for the view that the Constitution imposes tight constraints on sex discrimination by state governments (considered extreme for much of American history), and quite a few other cases.

There are serious arguments for each of these three approaches. But none of them can rest on the assumption that either the Democrats or the Republicans are targeting only “out of the mainstream” nominees.

Ultimately, we should spend less time talking about whether nominees’ views are “out of the mainstream” and more time focusing on whether they are correct. For the most part, presidents of both parties are likely to nominate judges who are within the mainstream of their side of the political spectrum, and that mainstream is also likely to enjoy considerable public support (even if not always a majority). But when one side’s mainstream is deeply at odds with the other’s, that suggests that one or both are also badly misguided.

UPDATE: I have changed the title to better reflect the argument of the post.

In the comments to my recent judicial nomination posts, some have wondered why I insist on distinguishing between blue slips and filibusters.  So I thought I’d quickly address this point before posting on how to end the obstruction of judicial nominees.  The reason for distinguishing between filibusters and blue slips is that these two modes of obstruction — both of which I would like to see abolished — operate quite differently.  Put simply, the costs and benefits of exercising each method of obstruction are quite different, and this affects how and when each is used — and affects the likelihood of reforming or eliminating either.

Here are some key differences.  Under Senate tradition, the Senate Judiciary Committee will not proceed with a nominee unless both home state Senators return blue slips on that nominee.  If a slip is withheld, the nomination will not move.  This is justified on grounds of “courtesy” to the home-state Senator and is supposed to encourage the White House to consult with home state Senators before making nominations.  For the record, neither party has been particularly consistent in its enforcement of the rule, or in consultation, but this is the general tradition.  In practice, the blue slip tradition gives a single Senator — but only the home-state Senator — the ability to block a judicial confirmation.  Cooperation of the Senator’s caucus is not required.  Thus, Jesse Helms could hold up nominees to what are considered North Carolina seats on the Fourth Circuit in retaliation for the Senate’s failure to confirm Terence Boyle and Carl Levin could hold up nominees to Michigan seats on the Sixth Circuit in retaliation for the Senate’s failure to confirm Helene White.  Blue slips only work if the Senate Judiciary Committee Chairman observes them — and there is little move to get rid of blue slips in the Senate because each Senator likes the idea of being able to control nominations from his or her state.

For a filibuster to block a judicial nominee, more than 40 Senators must agree to prevent a vote on confirmation of a nominee.  thus filibusters require a degree of cooperation the blue slips do not.  This makes them more difficult to use and makes them, by their nature, more inherently partisan.  Whereas a home-state Senator may use the blue slip tradition out of pique or in an effort to defend his or her prerogative — and can do so alone — a single Senator cannot cause a filibuster.  This is why filibusters are more rare and, until ten years ago, had never been used to block the confirmation of a nominee.

Another key difference is that filibusters are more public — and thus risk greater political backlash — than do blue slips.  In addition, blue slips (and the preceding consultation which is supposed to occur) occur in private, and typically get little attention. Moreover, if a home-state Senator’s use of a blue slip is disclosed, this may actually result in political benefits back home, as the Senator may be seen as protecting the state’s interests.  Filibusters of judicial nominees, on the other hand, require public votes.  (For more on the distinctions between these forms of obstruction, see this old post.)

For what it’s worth, I oppose both filibusters and blue-slips.  I think all judicial nominees should get timely up-or-down votes, and I think the Senate should adopt a rule to this effect.  Yet I also think blue-slips are more ingrained in Senate culture — and more fiercely defended by Senators as a home-state prerogative (much like Senatorial involvement in the selection of district court nominees).  If this means blue slips can’t be eliminated, I would at least require that their use be disclosed (much as I think the use of holds on any nomination should be disclosed).

Partisans in judicial nomination fights like to play the victim.  As each side tells it, obstruction of judicial nominees is all the other side’s fault.  Each act of contemporary obstruction is justified by some act of obstruction that came before.  The reality, however, is that there are no clean hands in these fights any more.  For over twenty-five years the two parties have been engaged in an escalating game of tit-for-tat.  Each time the tables are turned, the opposition party retaliates in kind, and then some.  Given the reactions to my post yesterday on judicial nominations, I thought it would be worth recounting the history (as I have before) — with the relevant data — and then to explain what it means.  I’ll follow this up with a post on what I think should be done, in light of this history, to end the obstruction of judicial nominees.

In the context of appellate nominations, Senate Democrats decided to begin opposing some of President Reagan’s nominees in 1986.  Although they did not frame their opposition in ideological terms, this initial effort was clearly motivated by a desire to prevent the Reagan Administration from stocking the courts with judicial nominees who shared the administration’s conservative judicial philosophy.  This initial effort yielded a few victories — a few nominees were defeated (including Jeff Sessions, who now sits on the Senate Judiciary Committee) — but 88 percent of Reagan’s appellate nominees were confirmed.  Efforts to block conservative judicial nominees by delaying confirmation increased during the latter half of George H. W. Bush’s Administration and, as a consequence, only 79 percent of his appellate nominees were confirmed.  (Data on confirmation rates are taken from this Brookings Institution report by Russell Wheeler.)

President Clinton’s nominees had relatively smooth sailing during his first two years, when Senate Democrats held the majority, but his administration was relatively slow to make nominations.  As data available from the Federal Judicial Center shows, at the end of his first year in office, President Clinton had named nominees for fewer than twenty percent of judicial vacancies.  For the twenty appellate vacancies in November 1993, Clinton had only named two nominees. The Clinton Administration’s failure to move on judicial nominations became a problem when Republicans took the Senate in 1994.  With fewer nominees in the confirmation pipeline, it was relatively easy for Republicans to keep Clinton’s confirmation numbers down.  All they had to do was slow down the process — and they did.

Despite GOP-orchestrated delays, Clinton saw 77 percent of his appellate nominees confirmed (compared to his predecessor’s 79 percent).  And whereas Senate Democrats had focused their prior efforts on blocking appellate nominees, Senate Republicans slowed the rate of district court nominees, resulting in Clinton seeing only 86 percent of his district court nominees confirmed.  (The first President Bush only saw 79 percent of his district court nominees confirmed, but as Wheeler notes in the report linked above, this is largely due to the significant number of new district court judgeships created in 1990.  Thus a better benchmark is the 90+ percent confirmation rate for Reagan’s and Carter’s district court nominees.)

Senate Democrats were not particularly happy with Republican treatment of Clinton’s nominees, particularly those that were held for extended periods, so they returned the favor as soon as they had the opportunity. President Bush offered an olive branch in May 2001 when he re-nominated Roger Gregory to the U.S. Court of Appeals for the Fourth Circuit to fill a seat that had been open when Clinton took office, and remained vacant until Clinton recess appointed Gregory at the end of his second term.  Bush also nominated a prominent Clinton district court nominee, Barrington Parker, to the U.S. Court of Appeals for the Second Circuit.  These gestures did not earn much goodwill, and Senate Democrats resolved to obstruct the confirmation of appellate nominees particularly those, like Miguel Estrada, who were likely Supreme Court picks.   They slowed the process down — much as Republicans had done to Clinton — while they had the majority.  Once they lost control of the Senate, however, they tried something new: filibustering appellate nominees.  In all ten appellate nominees were successfully filibustered.  Five of these were later confirmed after the Gang of 14 deal, whereas the other five were never confirmed.  Of note, while the Gang of 14 deal led to the confirmation of some filibustered nominees, many Senate Democrats (including a Senator from Illinois who now sees things from the other side) continued to vote against cloture on high-profile appellate nominees.

In the end, President George W. Bush saw only 67 percent of his appellate nominees confirmed — a lower percentage than any of his predecessors.  This was despite efforts to make up for past GOP obstruction at the start of his term and a later deal in which Bush re-nominated another stalled Clinton nominee in exchange for confirmation of one of his own. On district courts, however, Bush’s nominees fared better.  95 percent of his district court nominees, which is in line with the pre-Clinton norm.

Nothing motivates a Senator like a need for payback, so Senate Republicans targeted President Obama’s judicial nominees from the get-go.  Their task was made easier by the Obama Administration’s tardiness in making judicial nominations.  Like Clinton, President Obama made nominations for fewer than 20 percent of the judicial seats vacant at the end of his first year in office.  What nominations were made, were made at a slow rate, making it easy to target individual nominees.

Beginning in 2009, Senate Republicans also embraced a tactic they once scorned: the filibuster of judicial nominees.  As Senator Jeff Sessions explained in a 2009 op-ed, for Republicans to ignore the fact that “the rules had changed” would constitute “unilateral disarmament.”  Thus until an agreement is reached to eliminate the filibuster of judicial nominees of either party, the tactic would be on the table.  And so, the filibusters eventually began.

While some GOP Senators have voted against cloture for judicial nominations consistently, cloture has only been defeated for three — Goodwin Liu, who was defeated; Catilin Halligan, whose nomination is still pending for the U.S. Court of Appeals for the D.C. Circuit; and Robert Bacharach, who was subsequently confirmed in February 2013.  So, for purposes of comparison, Senate Democrats successfully filibustered ten Bush judicial nominees, ultimately defeating five.  Thus far, Senate Republicans have successfully filibustered three of President Obama’s judicial nominees, and have thus far defeated two (including one that is still pending).

Despite Republican obstruction, President Obama saw 71 percent of his appellate nominees confirmed during his first term — more than G.W. Bush, but fewer than Clinton or G.H.W. Bush.  At the district court level, however, the confirmation rate for President Obama’s nominees dropped to 80 percent.  (Note: The Wheeler study reports a figure of 78 percent through Dec. 12, 2012.  Seven more district court nominees were confirmed after December 12 in 2012.)  The slow and steady — but definitely slow — pace of confirmation has continued since.  Already in 2013, three more district court nominees and three more appellate nominees have been confirmed.

What this history shows is that there are no clean hands. for over twenty-five years, Senators have engaged in an escalating game of tit-for-tat, in which each side seeks to out do the other, has now gone on for over twenty-five years.  Should this trend continue, things will only get worse.  What began as a targeted effort to defeat some nominees morphed into the use of procedural delays to slow confirmations.  What began as a fight over appellate nominees, has broadened to include nominees for district courts.  Whereas delay was once confined to the majority’s use  of agenda control to slow down the rate of confirmation and the occasional exercise of home-state prerogatives (through blue slips), it has since been expanded to filibusters of well-qualified nominees.

The Independent Counsel law was only laid to rest once Presidents from both parties had felt its sting.  Now that both parties have seen highly qualified judicial nominees blocked — filibustered even — perhaps we are reaching a similar point with judicial nominations.  The problem is that neither side will unilaterally disarm — not when each feels the other has committed the more grievous wrong.  In my next judicial nominations post, I’ll discuss two potential pathways for solving the judicial confirmation mess — assuming, of course, there are those who think the obstruction of qualified nominees is a problem worth solving.

Over the weekend, the NYT published a highly misleading story about Republican filibusters of President Obama’s judicial nominees. Consider the very first sentence of the article: “A fresh feud over federal judgeships has again begun to agitate the Senate, with Republicans so far blocking President Obama from filling any of the four vacancies on the nation’s most prestigious and important appeals court.” Republicans have stopped the President from “filling any of the four vacancies”? That would be quite a trick, given that President Obama has only made two nominations for that court — Caitlin Halligan and Sri Srinivasan [-- and only one of them, Halligan, has even come up for a vote]. These nominations were first made in 2010 and 2012. [Had the President made more nominations -- and the Republicans had blocked them all (something that could still happen) -- it would be fair to say Republicans were "blocking President Obama from filling any of the four vacancies."]

Halligan, the story notes, was “nominated to fill the vacancy left by Judge John G. Roberts Jr. when he left to join the Supreme Court in September 2005.” But wait. President Obama nominated Halligan in September 2010 — five years after Roberts was confirmed. What happened in the interim? Well in 2006 then-President Bush nominated Peter Keisler to replace Roberts. Keisler was eminently qualified and endorsed by the Washington Post, but he never got a vote. Like some of Bush’s other nominees to the D.C. Circuit — most notably Miguel Estrada, whose nomination was repeatedly filibustered until he eventually withdrew — Keisler was blocked.

There’s still more misleading material in the story, as Ed Whelan documents here. Among other things, the story claims that the “Gang of 14″ deal to allow some of President Bush’s blocked nominees to receive confirmation votes became “informal Senate policy,” but fails to note that Senate Democratic leaders (and one Illinois Senator who would go on to bigger and better things) continued to vote against cloture on Bush nominees despite the deal. Further, by the deal’s own terms, it only applied to the Congress in which it was signed.

The filibuster of judicial nominations is regrettable, and it’s something I’ve consistently opposed. While I don’t expect a fair recounting of the history from the NYT editorial page, I do expect better from the news pages.

[Note: I edited the first paragraph because some objected to my omission of the word "any" from the NYT story quote, even though I reproduced the entire quote in the preceding sentence. My point still stands.]

CUNY Law Professor Jenny Rivera has been nominated for a position on the New York Court of Appeals. In a hearing earlier this week, some of the questioning focused on her article, An Equal Protection Standard for National Origin Subclassifications: The Context that Matters, 82 Wash. L. Rev 897 (2007), the abstract of which includes the following:

This Article argues that context that is specific to and conscious of the experience and legal position of national origin groups matters just as much as racial themes and context in race-based legislation. It analyzes equal protection challenges to Latino classifications and presents a new approach to equal protection doctrine and discourse in which Latino national origin subclassifications are contextualized and recognized as legally relevant and operative. The Article demonstrates that the context that matters in national origin classification cases depends on factors associated with country of origin subclassifications, as well as the homogeneous classification of all persons of Latin American and Latino Caribbean descent as Latino.

This Article’s proposed uniform standard of review for national origin subclassifications depends upon the legal, historical, cultural, and political context of subclasses. To justify a contextualized definitional and constitutional analysis, it draws on the history surrounding the definition of “Latinos” and “Hispanics” in the United States. Subclassifications are constitutional if (1) the initial legislative or administrative decision to classify by national origin satisfies the current strict scrutiny standard, which requires a narrowly-tailored remedy that serves a compelling governmental interest; and (2) the subclassifications are based on the intragroup dynamics and histories of the relevant target subclass, focusing on the experience of individuals within the subclass as “Latinos” and as subclass members.

Rivera was asked in the hearing if and how the views advocated in her article reflected how she would interpret and apply the law if a similar case came along in her capacity as a judge. She responded that her work as a scholar was just the work of a scholar, while the work of a judge is entirely different. A scholar raises questions and thinks outside the box while a judge simply follows the law. The strong suggestion is that scholarly work would have no influence at all. Watch here starting at the 1:08:55 mark:

I have seen other professor-nominees respond in the same way to this sort of questioning, and I find it a little puzzling. One one hand, I understand the reason for a nominee’s sudden conversion to legal formalism. Formalism lets the nominee draw a sharp distinction between the work of a scholar and the work of a judge: Because the judge merely follows the law, the scholar’s writing becomes irrelevant. With that said, this sort of formalist account offers neither a satisfactory account of what judges actually do nor of what legal scholars should do. For judges, the statement that they will follow the law doesn’t say anything interesting; the heart of the issue is what influences they consider relevant to determining what “the law” is. And for scholars, I would hope that a scholar’s interpretation of how to interpret the Constitution is more than just a throw-away thought experiment that even the scholar would ignore entirely if nominated to the bench.

My sense is that the extent to which a scholar’s work provides insight into their likely decisions depends on the nominee. With some, it’s an excellent indicator; with others, not so much. With that said, just as a matter of performance at a hearing, I think there’s a more candid answer than pure formalism that most nominees can legitimately use. A nominee can answer that their scholarship was directed to the U.S. Supreme Court, not lower courts or state courts. Lower federal and state court judges are bound by the U.S. Supreme Court’s precedents interpreting the U.S. Constitution, while U.S. Supreme Court Justices are not. As a result, nominees to lower federal courts and state courts can legitimately say that they will ignore their own scholarship on federal law (at least in subjects with lots of precedents on the books) because that scholarship was directed to the very different audience of the U.S. Supreme Court — a court to which they have not been nominated. I think that’s a more honest answer, although I realize that it’s much easier for nominees to rely on formalism than to get into a discussion of vertical stare decisis.

Judges are elected in Ohio. Those seeking judicial office, whether the state supreme court or court of common pleas, must seek party endorsements and run in contested elections. While party affiliation is not displayed on the November ballot, candidates run in partisan primaries and mount serious campaigns, complete with television ads. Because judicial elections are lower profile than many other races, incumbency is an advantage, but reelection is hardly guaranteed. Case in point: Two well-regarded sitting justices – one Republican, one Democrat – were defeated this past November. A third incumbent justice was reelected.

Although elections are the primary means for selecting judges in Ohio, the Ohio Constitution provides for the appointment of judges by the Governor to fill vacancies in between elections. Such appointments occur with some regularity on lower courts, trial courts in particular, but less often on the Ohio Supreme Court. This year, however, Justice Evelyn Lundberg Stratton announced she would step down after 16 years on the High Court. Because there are two years left on Justice Stratton’s term, this gave Ohio Governor John Kasich the opportunity to name a new justice to the Ohio Supreme Court.

Given that judges are elected, and Justice Stratton’s replacement would have to run for reelection in two years, one might have expected politics do dominate the selection process. That was not the case, however, as the governor created a process to elevate merit above politics. After Justice Stratton announced her retirement, the Governor’s office invited applications for the position and named a group of Ohio attorneys, of which I was one, to assist Governor Kasich in making his selection. Our task was to evaluate the candidates and their fitness for the position. Governor’s Kasich’s instructions were clear: He wanted us to identify the best candidate, specifically the person with the experience, intellect, integrity, and temperament to make the best supreme court justice.

Thirteen individuals applied, most (but not all) sitting judges. We interviewed all thirteen to learn more about their background, their judicial philosophies, their view of the role of supreme court justice, and (if appropriate) how they felt about assuming an elective office. The pool was quite deep, and I was impressed with several candidates who would make fine state supreme court justices.

The process could have been quite political, but I was surprised at how little politics intruded. The Governor made clear he did not want political considerations to intrude on our deliberations. Beyond the recognition that state supreme court justice is an elective office, and the appointee would have to stand for reelection in two years, politics were not a concern. We did not have to worry who had the best political connections, who was owed a favor, or who could help the Governor politically. Instead, we identified the most qualified candidates and their respective strengths and weaknesses.

On December 20, Governor Kasich announced his selection: Judge Judith French of the 10th District Court of Appeals. This was a superlative choice. Judge French has served as an appellate judge for eight years. Prior to this she had served as Chief Counsel to Ohio Governor Bob Taft and Attorney General Betty Montgomery, as well as Deputy Director of Legal Affairs at the Ohio Environmental Protection Agency and an attorney in private practice. Of particular interest, Judge French argued two cases before the U.S. Supreme Court on behalf of the state, Zelman v. Harris-Simmons (the school vouchers case) and Whitman v. American Trucking Associations (a challenge to air quality standards). I expect her to make an excellent justice.

Imagine there is a vacancy at the U.S. Supreme Court, and the Supreme Court has very recently decided an abortion case 5-4. Although five Justices supported abortion rights, four dissenting Justices made clear that they do not believe the Constitution protects any right to abortion. A Republican President is in office, and he nominates an appeals court judge to fill the vacancy. The nominee doesn’t have much of a record on abortion rights as a circuit judge. At the same time, the nominee’s conservative credentials (and support from a GOP President) suggest that he is probably going to join the dissenters and vote against abortion rights in future cases. Abortion rights advocacy groups decide to oppose the nominee: They run attack ads against the nominee and announce that they will “score” the Supreme Court vote (that is, count that vote in tabulating the group’s official rating of that politician) in order to pressure pro-choice Senators to vote against him.

Now ask yourself, do you think the abortion rights advocacy groups somehow acted improperly by trying to use their political influence to pressure Senators to oppose the nominee? I think most people will say “no.” We expect advocacy groups to try to use their influence on political bodies like the Senate when rights that they see as central to their mission are up for grabs. Of course, the groups might be misguided. Perhaps you will disagree with them on the issues. And it’s fair to criticize a group’s reaction as unfair in its specific claims, perhaps reflecting a single-minded focus and a lot of passion amidst relatively sparse evidence of the nominee’s views. Indeed, maybe the group has misjudged the nominee entirely; remember NARAL’s opposition to the nomination of David Souter. But the basic idea of the effort to influence the process is nothing unusual. The Senate is a political body, and this is just the way things work.

Now let’s flip the politics and make the issue gun rights instead of abortion rights. Let’s use a recent example, the nomination of Sonia Sotomayor in 2009. President Obama nominated Sotomayor less than a year after the Supreme Court decided by a landmark 5-4 vote in DC v. Heller that the Second Amendment protects an individual right to keep and bear arms. There was already a circuit split and a cert petition filed on the next logical question, whether the Second Amendment applied to the states through the Fourteenth Amendment, and it was obvious that the Court would decide that important question next. With the meaning of the Second Amendment finally reaching the Court in a major way, the NRA started exerting its political influence in the area of Supreme Court nominations. Just like NARAL Pro-Choice America had scored the Senate votes on the nominations of Roberts and Alito, the NRA scored the Senate vote on the nomination of Sonia Sotomayor. It did the same the next year with the nomination of Elena Kagan. And just like NARAL Pro-Choice America opposed several of George W. Bush’s circuit court nominees (in 2005, it scored the confirmation votes on Judges Pyror, Brown, and Owen), the NRA has opposed the pending DC Circuit nomination of Caitlin Halligan.

Is the fact that the NRA has tried to influence the confirmation process improper? It seems to me that the answer is “no,” just like it was not improper for abortion rights groups to try to block several of George W. Bush’s nominees. Of course, you can agree or agree with the NRA’s decisions on the merits. Again, you can say their ads were over-the-top given the relatively sparse record on the issue. But again, we expect advocacy groups to try to use their influence on political bodies like the Senate when rights that they see as central to their mission are up for grabs. Maybe that opposition is misguided. But there is nothing improper about the advocacy groups scoring the vote or taking a position on the nomination.

Or so it seems to me. According to her latest post, however, Linda Greenhouse has a very different reaction. Greenhouse expresses outrage at the National Rifle Association’s attempt to influence the judicial nominations process during the Obama Administration:

It is totally unacceptable for the N.R.A., desperate to hang on to its mission and its members after achieving its Second Amendment triumph at the Supreme Court four years ago, to be calling the tune on judicial nominations for an entire political party. Free the Republican caucus. . . . Call for an end to the cowardly filibuster against Caitlin Halligan, whose nomination the president resubmitted in September. The next time a senator announces opposition to a judicial nominee, demand something other than incoherent mumbo-jumbo. Tell the senator to fill in the blank: “I oppose this nominee because ____.” If there’s an answer of substance, fine. That’s advise-and-consent democracy. But if, upon inspection, the real answer is “because the N.R.A. told me to,” we have a problem. Based on these last few years, I think we do.

So here’s my question: Shouldn’t the same sense of propriety cover both cases? If it’s proper for one, shouldn’t it be proper for both? Or is there a persuasive way to distinguish the two cases? (Oh, and I realize that the NRA is in the news for its proposals for responding to the Sandy Hook shooting — proposals that I find, um, unhelpful. But I want to focus this post on the proper role of groups in influencing the judicial confirmation process.)

Last week, historian David Greenberg surveyed political fights over Supreme Court confirmations prior to the Senate’s rejection of Robert Bork in 1987 in an NYT op-ed. “Although Mr. Bork’s confirmation certainly represented a major battle of the Reagan years, the campaign to defeat him was neither unprecedented nor illegitimate,” he writes. According to Greenberg: “The Democratic campaign against Bork in 1987, then, wasn’t anything new; it merely resumed a dynamic that had been temporarily obscured — one as old as the republic and a perfectly fair, if often cynical, deployment of the Senate’s power to advise and consent.”

Although Greenberg is certainly correct that Robert Bork was hardly the first Supreme Court nominee rejected by the Senate, or the first opposed on ideological or political grounds, his account leaves out some important context. While noting that the Senate had been more deferential to Supreme Court nominees through much of the 20th century, Greenberg fails to account for the character of the campaign against Bork — the outlandish charges, distortion of his academic work, and character assassination. Insofar as these tactics replicated the scurrilous campaign by some Southern Senators to block confirmation of Thurgood Marshall, they were indeed “precedeented,” but I would not call them legitimate.

As Walter Olson reminds us, Bork’s opponents went so far as to suggest Bork was suspiciously like some of his academic critics, in that he was insufficiently devout and was himself a former academic with an allegedly “strange lifestyle.” Some Democratic Senators actually cited Bork’s failure to discuss his relationship with God and lack of religious commitment to justify their votes against him.

Greenberg also omits the fact that the anti-bork campaign was the culmination of a concerted campaign against Reagan’s judicial nominations that actually began several years earlier and initially focused on lower court nominees. As I’ve noted before (see also here and here), Senate Democrats decided in 1985 to begin targeting appellate nominees. As the Washington Post reported on November 12, 1985, Senate Democrats were reluctant to premise their opposition on ideology so they “trained their fire on other issues — credibility, temperament, discrepancies in testimony — to wound the most conservative nominees” to block those they could. And once the Democrats took back control of the Senate in 1986, their efforts bore fruit, and multiple appellate nominees were defeated before the Bork nomination took center stage. These efforts, as much as the Bork fight, triggered the ever-escalating obstruction that has plagued lower court judicial nominations ever since.

At his Balkinization blog, Yale law professor Jack Balkin has a fascinating post on the ways in which legal history might have changed if Robert Bork had been nominated to the Supreme Court in 1986 rather than 1987:

Robert Bork’s passing reminds us of how much the development of constitutional doctrine depends on contingencies. Had Ronald Reagan nominated Robert Bork instead of Antonin Scalia in 1986 upon Chief Justice Burger’s retirement, the odds would have been much greater that Bork would have been confirmed. After all, Republicans would have been replacing one conservative with another (although Bork was considerably more conservative than Burger by that point) and, equally important, Republicans controlled the Senate.

Then, in 1987, when Lewis Powell retired, Antonin Scalia might have had a far easier path to confirmation than Bork did, even though by that point the Democrats controlled the Senate. You may recall, for example, that Republicans made much of the fact that Scalia was the first Italian-American nominated to the Court. In addition, Scalia had not fired Archibald Cox during the Saturday Night Massacre, and although he was known as an implacable foe of Roe v. Wade, he lacked Bork’s remarkable paper trail of opposition to civil rights and civil liberties.....

With both Bork and Scalia on the Court, the history of constitutional doctrine would probably have been quite different. For one thing, Roe v. Wade would probably have been overturned within five or six years....

Without the bitterness of the Bork confirmation battle, George H.W. Bush might not have felt gun shy about nominating a more overtly conservative candidate in 1990, when William Brennan retired. Therefore there might have been no “stealth nomination” of David Souter– and we might have gotten someone like Ken Starr, or Edith Jones, or even Clarence Thomas a year early. Later presidents might not have been so eager to nominate only young candidates with no paper trail, thus expanding the pool of talent available to the Court. (Bork was about 60 when he was nominated; later candidates have been considerably younger.)

Thus, flipping the order of the Bork and Scalia nominations might have allowed Presidents Reagan and Bush to stock the Supreme Court with reliable movement conservatives instead of Anthony Kennedy and David Souter. This, in turn, might have led to a conservative constitutional revolution that was much broader and deeper than what actually occurred during the Rehnquist Court....

Despite Bork’s defeat, movement conservatives actually got their hero. Clarence Thomas has proven to be everything that Bork might have been, and more.....

What conservatives did not get, however, was five movement conservatives on the Court. If they had, we might be speaking of the post-1987 period the way we speak of the New Deal Revolution or the glory days of the Warren Court as a period of significant constitutional transformation.....

I think this argument has some validity. Had Bork been nominated in 1986 and Scalia in 1987, there is a real chance that both would have gotten on the Court, and constitutional doctrine would have been more conservative as a result. But I also think that Balkin probably exaggerates the extent of the difference.

It is unlikely that avoiding a confirmation battle in 1987 would have avoided ideological conflict over judicial nominations indefinitely. Given the deep ideological and partisan disagreements over constitutional law that had emerged by the 1980s, it was almost inevitable that something like the Bork nomination would happen sooner or later. If Bork had been confirmed in 1986 and George H.W. Bush had nominated a strong conservative in 1990 instead of David Souter, the Democratic-controlled Senate might well have rejected that nominee. The experience of having Bork and Scalia on the Court, writing strongly conservative opinions, might actually have stiffened Democrats’ determination to prevent another similar conservative from getting confirmed. The Senate might have insisted on a Souter-style “stealth nominee” in 1990. They might have narrowly rejected Clarence Thomas in 1991 instead of narrowly confirming him by a 52-48 margin.

The Bork battle was an important immediate catalyst for ideological conflict over judicial nominations, but not the root cause. It caused the war over nominations in much the same way as the assassination of Archduke Franz Ferdinand “caused” World War I. In both cases, the immediate cause of conflict merely heated up a long-brewing preexisting antagonism.

Finally, even a firmly established conservative majority on the Supreme Court probably would not have led to a constitutional “transformation” on the scale of “the New Deal Revolution or the glory days of the Warren Court.” In those latter cases, the Supreme Court was able to effect sweeping change in part because it was supported by a strong political majority. Liberal Democrats dominated the political scene throughout most of the 1930s and also the 1960s (at least until 1968). Conservative Republicans never achieved comparable dominance in the 1980s and 1990s.

The Supreme Court does not simply “follow the election returns.” Sometimes, it issues opinions that go against majority views or those of the dominant political coalition of the moment. But the Court does face significant political constraints, and the justices know there is only so far they can push public opinion and the political branches of government before the latter push back. A constitutional revolution on the scale of the New Deal and the Warren Court requires more external political support than the Rehnquist and Roberts Courts were ever likely to achieve between 1986 and the present.

Had Bork gotten on the Supreme Court in 1986, it would have made a significant difference. But it probably would not have caused a massive constitutional revolution.

After the first presidential debate and again after the debate between the VP candidates, I lamented the fact that the candidates and moderators had almost completely ignored judicial nominations. This is one of the areas where presidents have their biggest impact, and there are big differences between the two parties on a variety of major constitutional issues.

Unfortunately, the issue was ignored yet again in tonight’s debate. The only reference to courts that I could find in the transcript was a brief mention by Obama in discussing the Lily Ledbetter case; and he didn’t even say whether the Court had interpreted the law correctly or whether the case had any implications for the kinds of judges he plans to appoint. In any event, the Lily Ledbetter case is hardly even in the top 50 most important Supreme Court decisions of the last decade.

The final presidential debate is going to focus on foreign policy, so it isn’t likely that judges will come up. The courts have much less influence on foreign policy than on domestic issues. However, the moderator should at least ask the candidates about the Supreme Court’s War on Terror decisions and about the role of international law in interpreting the Constitution. These have been and will continue to be important legal issues that divide the two parties and their likely judicial nominees.

In this Politico post, I expanded on my recent VC post about dogs that didn’t bark during last night’s presidential debate. It was especially unfortunate that both candidates and the moderator completely ignored the issue of judicial nominations:

[N]either of the candidates or the moderator even mentioned judicial nominations, even though this is one of the areas where a president can have his biggest impact. The next president may well appoint as many as two or three Supreme Court justices, and numerous lower court judges. Those judges will likely serve for decades after he leaves the Oval Office, wielding enormous influence over the constitutional rights of all Americans. And there are big differences between the two parties on overall judicial philosophy, and specific constitutional issues such as federalism, property rights, free speech, and executive power.

For most presidents, the judges they appoint are among their most important and longest-lasting legacies.

On Saturday morning I also attended an ACS panel on “Congressional Gridlock in the Executive: A Battle Over Nominations, Recess Appointments, and the Use of the Filibuster,” featuring law professors Michael Gerhardt and Michael McConnell, Louis Fisher of the Congressional Research Service, Marge Baker of the People for the American Way and moderated by Professor Neil Kinkopf.  As with yesterday’s post, my summary (and some comments) are below the jump. Continue reading ‘ACS Panel on Nominations, Recess Appointments and the Filibuster’ »

I was happy to hear that the cloture vote on the nomination of Paul Watford to the Ninth Circuit will be held Monday, and I very much hope that Paul will be confirmed. For those interested, here’s my post praising Paul, whom I know well, Orin’s post praising Paul, my letter to the Senate Judiciary Committee urging that Paul be confirmed, and many Kozinski clerks’ letter urging the same. UPDATE: See also these letters from local prominent conservative lawyers (both former presidents of the L.A. Federalist Society chapter), Henry Weissmann and Jeremy Rosen, plus the General Counsels of CIRCOR, Verizon, Mattel, and Google.

The National Law Journal reports that the White House is largely to blame for the high number of vacancies on the federal bench.

Democrats have held conference calls and hosted activists from around the country to say the reason fewer federal judges have been confirmed during the last three years is clear: Republicans in the Senate have used their powers to stall most of the president’s nominees, even the noncontroversial ones.

But as a window appears to be closing at least temporarily to send any new judicial nominees to Capitol Hill, law professors and advocacy groups say Obama could have had more judges confirmed to the bench had he simply made more nominations over his first three-plus years in office.

Since Obama took office, he’s had a chance to make nominations for 241 federal judgeships. Some of them — 55 — were vacant slots held over from the Bush administration. Obama has nominated 188 judges, and the Senate has approved 147 of them. That leaves a current total of 94 vacancies — 77 vacant slots and 17 held by judges who have said they plan to retire. (The president can nominate a new judge before the position becomes vacant.)

At this point in their presidencies, George W. Bush had nominated 220 judges for 236 positions, and Bill Clinton had nominated 231 out of 260, according to a report by the Alliance for Justice, a left-leaning court advocacy group.

And despite filibuster threats and other behind-the-scenes delaying tactics, senators have confirmed Obama’s judicial picks at the same rate — roughly three out of four — as during the Clinton and Bush terms.

This is not a new observation, but it’s worth repeating. Without question Republicans have made it difficult to move judicial nominees, much as Democrats did when Presidents Bush and Bush were in the White House. Republicans have also resorted to the filibuster, prompting some on the other side to reconsider its use for judicial nominations. GOP opposition may have prompted more careful and extensive vetting and discouraged the naming of controversial nominees. In any event, obstruction of nominees is now the norm — and this norm is unlikely to change unless there is a pre-election deal, perhaps like the one I outlined here. Until such a deal can be made, judicial nominees will get slow-walked to the bench no matter which party is in charge.

Joan Biskupic reports that President Obama is likely to become the first President “in at least half a century” to complete a term without placing someone on the U.S. Court of Appeals for the D.C. Circuit.  This will happen unless the Senate reverses course and opts to confirm Caitlin Halligan, or the Administration quickly nominates a consensus candidate for one of the other two remaining openings on the court.  There are eleven seats on the D.C. Circuit but only eight active judges, in addition to several judges with senior status who still hear cases.

As I’ve noted before, one sure way to get a judicial nominee confirmed to the D.C. Circuit would have been for President Obama to follow President Bush’s lead and renominate one of his predecessor’s stalled nominees.  The most obvious candidates for such a move were two of Bush’s nominees to the Fourth Circuit, but there was also a strong candidate for the D.C. Circuit: Peter Keisler, who received a unanimous “well-qualified” rating from the ABA and whose confirmation was supported by, among others, the Washington Post and LA Times.  Such a move is unlikely, as are other steps to reduce the partisan conflict over judicial nominations.