Yesterday’s New York Times had a particularly intemperate editorial on the subject of judicial nominations. Though the Times supported Senate Democrats’ filibuster against several Bush judicial nominees – and is still unready to abandon the tool — the Gray Lady’s editorialists are apoplectic at the suggestion that Senate Republicans might do the same, even in pursuit of “appropriate” White House consultation on prospective nominees.
The Times still defends those old filibusters, but only against conservative judicial nominees. Resort to the filibuster “can be an appropriate response when it is clear that a particular nominee would be a dangerous addition to the bench,” the Times explains. But threatening a filibuster is inappropriate in pursuit of greater consultation.
If anything, the Times has it backwards. I do not believe it is ever appropriate for the Senate to filibuster nominations on ideological grounds, and I have no love of blue slips. If filibusters against nominations are ever appropriate (and I stress the “if”) it would be on procedural grounds, such as to ensure the consistent application of Senate rules. I find resort to procedural tactics less objectionable when the aim is to ensure that Senators have adequate time to review a nominee’s record than when used to defeat a judicial nominee who enjoys majority support.
The Times’ argument is also difficult to square with history. Senate Democrats did not simply filibuster the “least-competent, most radical” Bush nominees. While the filibuster was deployed against my least favorite Bush nominee, some of those Senate Democrats sought to block were among the most impressive and accomplished. Nominees with majority "well qualified" ratings from the ABA were stalled, while those with simply "qualified" ratings (or worse) sailed through. Senate Democrats did not filibuster Miguel Estrada because he was any more conservative or less qualified than other appellate nominees. To the contrary, he was blocked because Senate Democrats feared he might be nominated to the Supreme Court. In other cases, filibusters were explicitly used as payback for GOP failure to move Clinton nominees, consult adequately with Senate Democrats, or respect the dreaded blue slips the Times now decries as “undemocratic.” If it was okay for the Senate to filibuster Henry Saad to force the renomination of Helene White, how are the Republicans out of line now?
The Times editorial is also over-the-top in its characterization of Bush nominees now on the bench. “The nation is now saddled with hard-right Republican judges who are using the courts to push an agenda of hostility to civil rights and civil liberties; reflexive deference to corporations; and shutting the courthouse door to worthy legal claims.” Those last bits are particularly amusing given the Supreme Court’s expansive rulings on standing and habeas rights in Massachusetts v. EPA and Boumediene, respectively, not to mention the Wyeth decision handed down last week – a decision that should help put to rest claims that federal courts exhibit “reflexive deference to corporations.”
Setting the merits of individual cases aside, it is hard to argue that the Supreme Court is particularly right wing, as I’ve discussed at length. It is also hard to take seriously the Times’ suggestion that federal courts are “stock[ed]” with “conservative ideologues.” President Bush named approximately one-third of the judges now sitting on the federal appellate bench. This is close to what one would expect given his eight years in the Oval Office – if anything, the proportion of Bush nominees on federal appellate courts is below the norm.
Now the Times calls upon President Obama to “repair the damage” wrought upon our legal system by Bush nominees through the nomination of “highly qualified, progressive-minded judges” who will “counterbalance” the “ideologues who control many appeals courts.” The folks at Times Square should take a deep breadth and relax. As I explained here, President Obama is likely to name close to one-third of the federal appellate bench in a single term, all but erasing any purported conservative dominance of the federal courts. Even if President Obama emulates his predecessor by renominating a few Bush nominees, there’s little doubt Democratic nominees will constitute a majority of federal appellate judges in 2012.
UPDATE: Ed Whelan has more on what was, and was not, done with blue slips here.