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Another Judicial Nomination Fight:

Another showdown over judicial nominations is looming on the horizon. In 2006, President Bush nominated Peter Keisler to a seat on the U.S. Court of Appeals for the D.C. Circuit, and renewed the nomination earlier this year. Keisler is eminently qualified for a seat on the Court, but Senate Democrats may oppose his confirmation nonetheless. As The Hill reports:

The judge's liberal critics acknowledge that he has excellent legal credentials, but charge that he has shown no commitment to advancing civil rights or environmental and worker protections. They are also suspicious of his role as co-founder of the Federalist Society, a bastion of conservative jurisprudence.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) last week hinted that Democrats would block Keisler's nomination.

There is little to challenge in Keisler's record, as he has distinguished himself in both private practice and government service -- so his opponents will instead insist that the Administration has been too slow, or too unwilling, to release documents that bear on Keisler's fitness for the bench.

Last year, liberal groups filed Freedom of Information Act requests with the Ronald Reagan Presidential Library for documents related to Keisler's time in the administration. Although the Reagan Library has cleared the records for public release, the White House has withheld them from dissemination.

"Unless those records are publicly disclosed, the Senate Judiciary Committee lacks the information to consider someone to lifetime appointment to the second-most important court in our country," said Judith Schaeffer, the legal director of People for the American Way, a group that has led opposition to Bush nominees.

In my opinion, Keisler deserves confirmation on the merits. I also believe Senate Democrats should begin to consider how they would like Democratic judicial nominees to be treated in the future, and set an example. This would be a welcome step toward a de-escalation in judicial nomination fights -- a step the next President (whomever he or she is) might appreciate.

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Judicial Nomination Fights -- Past and Present:

The responses to my post on the Keisler nomination below raise many issues that I have addressed in prior posts on this blog (see here, here, here, and here). To recap my take on things: 1) I believe the Senate should be relatively deferential in confirming judicial nominees, focusing on qualifications rather than ideology; 2) the modern practice of opposition to appellate judicial nominations on ideological grounds began in the mid-to-late 1980s when Senate Democrats decided to try and blog some of President Reagan's nominees; 3) efforts to block Reagan and Bush I nominees intensified in the last two years of their presidential terms(1987-88 and 1991-92); 4) once Republicans took the Senate during the Clinton Administration, they retaliated and upped the level of obstruction, often engaging in greater obstruction than had Senate Democrats; 5) during this administration, Senate Democrats have upped the level of obstruction, in both the majority and the minority; 6) this "downward spiral" of retaliation and politicization (to use Larry Solum's phrase) is ultimately corrosive of the judiciary and prevents the nomination and confirmation of the most-qualified judicial nominees; 7) neither party should engage in the obstruction of qualified judicial nominees, and both parties deserve blame for engaging in obstruction and delay in the past.

Returning to the present, I believe there is (once again) a window of opportunity to escape from the "downward spiral of politicization." While there is a Republican President, the Democrats control the Senate and have a reasonable prospect of capturing the Presidency in 2008. Therefore, Democrats have the opportunity to re-establish a standard of good behavior toward judicial nominees — a standard neither party has met in quite some time — and therefore create Republicans to follow suit.

Another possibility would be for both parties to agree to a set of rules now that would bind both parties beginning in January 2009. Such a deal is only possible sufficiently far in advance that there is genuine uncertainty about which party will control the Senate and the White House when the deal becomes effective. On this basis, I believe there was a greater opportunity for such a compromise in 2003 than there is today, but I would welcome this or any other compromise that would put an end to the current judicial confirmation wars.

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The Case for Senate Consideration of the Ideology of Judicial Nominees:

I rarely disagree with co-blogger and coauthor Jonathan Adler. However, I do respectfully dissent from his view that "the Senate should be relatively deferential in confirming judicial nominees, focusing on qualifications rather than ideology."

Political ideology - at least in so far as it influences judicial decisions - is an extremely important attribute of a judicial nominee. The reason is clear: when judges make decisions in major cases, it is important that they get them right, not just that they do a good lawyerly job of justifying whatever conclusions they reach. As between a technically well-written opinion defending the wrong outcome in an important case and a mediocre opinion defending the right one, there is good reason to prefer the latter.

In cases where the relevant statute or constitutional provision is very clear, ideology may not influence the outcome much. But where there is vagueness and doubt (as there is with several important parts of the Constitution), both empirical research and common sense suggest that ideology may matter a lot. Moreover, the rise of nontextualist modes of interpretation has led to situations where ideology might influence the interpretation of even clear and unequivocal legal texts.

Since the dawn of the Republic, presidents have taken ideology into account when deciding who to nominate. Senators have every right to take it into account in deciding who to confirm. That is not to say that other considerations - including qualifications - are unimportant. They are and they should be. Nor do I mean to suggest that either the president or senators should only approve those nominees who agree with them 100%. However, ideology is one of several considerations that both the president and the Senate can reasonably take into account.

Obviously, senators will sometimes oppose a nominee for ideological reasons that I think are unsound. But the same is true of presidents, who will sometimes use flawed ideological criteria in picking their nominees. On average, however, a nominee subject to scrutiny by both the president and the Senate is likely to be better than one whose ideology has been weighed by the president alone, and thus represents a possibly much narrower range of interests.

The nomination procedure established by the Constitution inevitably invites consideration of ideological and political factors. After all, judges are nominated by the nation's most prominent political leader (the President) and are subject to confirmation by another political body (the Senate). Unlike many European countries, we do not have a "professional" judiciary in which appointment and promotion is controlled by higher ranking judges, bureaucrats, or other "nonpolitical" officials. On balance, that is a good thing. Flawed, as they are, the ideological preferences of the president and the Senate are more likely to lead to good outcomes than those of a narrow clique of career government bureaucrats.

That said, those who oppose a nominee because of his or her ideology should do so explicitly, not behind dubious accusations of incompetence or ethical impropriety. For example, as co-blogger Jim Lindgren has shown, American Bar Association ratings of judicial nominees generally rank liberal nominees higher than conservative ones with similar credentials. The ABA has every right to take ideology into account in rating judicial nominees, but it should not pretend that its partially ideology-driven judgments reflect a purely nonpolitical evaluation of objective "qualifications." On this issue (if on little else), I agree with Democratic Senator Charles Schumer:

For one reason or another, examining the ideologies of judicial nominees has become something of a Senate taboo. In part out of a fear of being labeled partisan, senators have driven legitimate consideration and discussion of ideology underground. The not-so-dirty little secret of the Senate is that we do consider ideology, but privately. Unfortunately, the taboo has led senators who oppose a nominee for ideological reasons to justify their opposition by finding nonideological factors, like small financial improprieties from long ago. This "gotcha" politics has warped the confirmation process and harmed the Senate's reputation.

Shunning explicit ideological considerations has not always been the Senate's practice. From the beginning of our republic, the president's judicial nominees have been rejected based on their political ideologies, sometimes even for their views on a single political issue. In 1795, George Washington's nomination of John Rutledge to be chief justice was scuttled because Rutledge had criticized the Jay Treaty. In 1845, President Polk's nomination of George Woodward was defeated because of his positions on immigration. ...

It would be best for the Senate, the president's nominees and the country if we return to a more open and rational debate about ideology when we consider nominees.

Related Posts (on one page):

  1. The Case for Senate Consideration of the Ideology of Judicial Nominees:
  2. Judicial Nomination Fights -- Past and Present:
  3. Another Judicial Nomination Fight:
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