Judicial Nominations

"The Only Rule that Governs the Confirmation Process Is the Law of the Jungle"

A 2016 op-ed by Benjamin Wittes and Miguel Estrada is worth revisiting.

|The Volokh Conspiracy |

In February 2016, after the tragic death of Justice Antonin Scalia, Benjamin Wittes and Miguel Estrada wrote on the demise of judicial confirmation norms in the Washington Post.  The advice they offered then, remains relevant today: "Assume that anyone who claims to be acting out of a pristine sense of civic principle is being dishonest." This may have been a cynical take, but it's hard to argue against.

As they wrote at the time:

We have both argued for a world in which judicial nominees receive prompt hearings and up-and-down votes based solely on their objective qualifications — education, experience and temperament. But that has not been our world for at least two decades. The savvy citizen should recognize as much and heavily discount anyone who speaks in the language of principle about the rules or norms that do or should govern the treatment of either a judicial nominee or the president who sends that nominee to the Senate. As recent history demonstrates, the only rule that governs the confirmation process is the law of the jungle: There are no rules. There is no point in pretending otherwise, as much as many of us wish it were not so.

We have come by this view with extreme reluctance. One of us was a judicial nominee who never got a vote from the Senate but who nonetheless publicly encouraged the Senate to support President Obama's appointees, including an overwhelmingly qualified Supreme Court nominee of the opposite party. The other wrote editorials for The Post for many years decrying unreasonable Senate treatment of nominees of the Bill Clinton and George W. Bush administration alike and also wrote a book arguing for a restoration of norms of expeditious and fair consideration of nominees. Both of us believe that when presidents nominate qualified nominees, the Senate should confirm them, and that courts should be fully staffed at all times to dispense justice to the litigants who come before them.

Rarely has either of us lost an argument more completely at the hands of the entire political culture than we have lost this one.

Like Wittes and Estrada, I would prefer the Senate to focus on the objective qualifications of nominees, and not on whether Senators believe a judge embraces the proper judicial philosophy. Although this is not constitutionally required, I have long believed such a standard is implied because the Constitution does not distinguish between judicial nominations and other presidential nominations. ["The president . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States."]

Such a norm is what allowed for the unanimous confirmation of Justice Antonin Scalia, and near-unanimous confirmation of Ruth Bader Ginsburg, despite the fact that many Senators disagreed with them on many issues. (Consider: If pro-choice Senators should vote against a nominee who is skeptical of Roe, pro-life Senators should have voted against Ginsburg, who was replacing the reliably anti-Roe justice, Byron White.).

As Wittes and Estrada noted in 2016, however, this norm of largely deferring to the President's nominees did not last very long. Indeed, some Senators actively sought to destroy it, finding other ways to obstruct nominees (as the Washington Post reported on Nov. 12, 1985) and eventually arguing that ideology alone was sufficient reason to oppose a judge's confirmation (which was the point of a set of hearings held in 2001). Senators hold grudges, and unilateral disarmament is not a viable strategy, so the result was an escalating game of tit-for-tat. It may have begun in the 1980s, when the confirmation of judicial nominees was held up in election years, but rapidly metastasized, producing serious consequences.

As Wittes and Estrada noted, the back-and-forth has gone on long enough, that neither side can escape blame:

Republicans and Democrats put the blame on the other for the complete abandonment of rules and norms in the judicial confirmation process. Both are being insincere — whitewashing their conduct over a long period of time while complaining bitterly about the very same conduct on the part of the other side. Both have chosen, in increments of one-upmanship, to replace a common law of judicial nominations that was based on certain norms with one based on power politics alone.

Today, there is no principle and no norm in the judicial nominations process that either side would not violate itself and simultaneously demand the other side observe as a matter of decency and inter-branch comity.

Like Wittes, I spent years arguing for various de-escalatory reforms, but neither side was interested. True de-escalation requires sacrifice—a willingness not to take advantage of the upper hand—and that's not a language today's politicians understand. President George W. Bush re-nominated one of Clinton's failed appellate nominees (Roger Gregory), over the objections of Republican Senators. This minor gesture was never reciprocated, nor repeated. The lesson learned was seems to have been that de-escalation is for suckers.

Wittes and Estrada concluded:

Our new judicial nominations system . . . came as a wolf. There were many good reasons, knowable at the time, not to let the wolf through the door. Both parties had other priorities — most important the perceived urgent need to prevent the other party from confirming its nominees. Appeals to principle and precedent ring hollow now — particularly because the parties are still appealing only to principles that any sentient observer knows they would not follow themselves.

I would like to think there is still a way back, but I am not sure what it is.  Term limits for justices might help lower the stakes, as could jurisdiction stripping, but I doubt such reforms would be enough. There is a need for more lower court judgeships, so there will be opportunities for Senators to work together for the health of our judiciary if they so choose, but I am not optimistic. Expanding the size of the Supreme Court would only make things worse, however, as it would represent yet another round of retaliatory escalation, and risk permanently compromising the Court's ability to serve as a check on majoritarian excess. To me that's a frightening prospect, but I am sure to some it would be a feature, not a bug.

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  1. “We have both argued for a world in which judicial nominees receive prompt hearings and up-and-down votes based solely on their objective qualifications — education, experience and temperament.”

    Would that include complying with his or her promise to uphold the Constitution?

    If so, that opens up an inquiry into whether they would uphold or violate the Constitution in their rulings.

    Or is education/experience/temperament just a euphemism for a judge who goes off and makes up his or her own laws, but it’s OK because they went to the right schools and use the right fork?

  2. Rather than engage in the fallacy of the virtuous middle I’d like to see it quantified when the abandonment of norms started who started it, who committed the most breaches, who tried the most reconciliations etc.

    As a layperson the earliest case that comes to mind (after the modern political spectrum had coalesced) where one side really sank below the belt in terms of trying to derail a SC nomination is Bork, a bit earlier than Garland which is when most lieftists seem to believe confirmation malfeasance was invented. But I’m sure others can point to even earlier dates.

    1. “But I’m sure others can point to even earlier dates.”

      1795 – John Rutledge.

      “Despite his prior resignation from the Court, in 1795, Washington nominated Rutledge to succeed Chief Justice John Jay while the Senate was on recess. Rutledge accepted the appointment and agreed to serve on a temporary basis until the Senate reconvened and his nomination could be properly vetted. Shortly after accepting the appointment, Rutledge gave a noxious speech decrying the Jay Treaty with Great Britain as pro-British, angering much of Washington’s administration. Soon after, rumors began circulating that Rutledge was mentally ill and an alcoholic, and his nomination to the Court failed in the Senate. He left the Court, public life and public service until the time he died in 1800.”

      https://www.smokeball.com/blog/7-of-the-most-controversial-supreme-court-nominations-in-history/

      1. Cool! So the rule has always been “confirm or deny based on politics”?

        Then the Dems need to stop whinging about Garland and ACB

        Thanks for clearing that up

    2. It seems overdetermined to pin the abandonment of norms on a single party in Bork, since subsequent to Bork were three consecutive nominations by a Republican president followed by approval in a Democratic Senate, two of which were highly bipartisan votes.

      Bork’s rejection seems similar to the rejections of Carswell and Haynsworth in 1969 and 1970. All three were opposed at least in part for their anti-civil rights and pro-segregation stances. Yet their rejections are seldom held up in the same light that Bork was, in part because Republicans were never quite as beholden to their president’s nominees in that time, and in part because Democrats were not unified in their opposition. What changed between 1970 and 1987 was not “one side [that] really sank below the belt,” but both sides forming strongly partisan lines around their viewpoints. Only six Republicans and two Democrats voted against their party in the Bork vote. That’s a warning sign against cooperation and bipartisanship, not whatever petty partisan points you can make out of a nomination fight 33 years ago.

      1. And…seems fairly obvious there was one specific triggering event between 1970 and 1987.

      2. It seems overdetermined to pin the abandonment of norms on a single party in Bork, since subsequent to Bork were three consecutive nominations by a Republican president followed by approval in a Democratic Senate, two of which were highly bipartisan votes.

        No.

        Kennedy was a hack who gave the Left far too many political wins that had nothing to do with the Constitution, and everything to do with his personal desires.

        Souter was a Leftist.

        Thomas was the only actual Conservative nominated after Bork, until we got a GOP Senate. And Thomas was only confirmed because Southern Democrat Senators didn’t want to pay the political price of voting against a black man appointed to teh Supreme Court.

        Bork was when the rules changed

      3. I think there are plenty of good-faith arguments that the beginning was not Bork. However, I do think that the 80’s was a turning point for political reasons. From 1955 to 1981, the Democratic Party held the senate, often by a filibuster proof or even veto proof majority. That changed in 1981. By 1987, they had regained the senate but still had the problem that Republicans held the presidency for 14 of the last 18 years. This fear of lack of control only worsened when the slow down at the end of Reagan gave way to GHWB. From there, Congress and the White House swung violently back and forth in a way that had not occurred in the prior 50 years. This changing landscape led to both more fear and more opportunities to tit-for-tat, create grudges, change rules, etc.

  3. “The Only Rule that Governs the Confirmation Process Is the Law of the Jungle”

    Welcome to the judicial nomination hearing –

    https://www.youtube.com/watch?v=o1tj2zJ2Wvg

  4. There is only one judicial qualification; does the nominee support my political philosophy?

  5. “Expanding the size of the Supreme Court would only make things worse”

    Enlarging the Supreme Court will be a great improvement, as will be enlarging the lower federal courts and enlarging the House of Representatives (with it, the Electoral College). The objections will be the inconsequential, partisan, hypocritical lamentations of our society’s political and cultural losers.

    1. I hope you do a good job explaining that to the “loser” who has you up against the wall when the time comes…

    2. Kirkland, every post of yours represents the inconsequential, partisan, hypocritical lamentations of our society’s political and cultural losers. As for court-packing, this is typical in that you fail to foresee that it will be used against you and the disadvantaged peoples that you claim to care about.

  6. I would prefer the Senate to focus on the objective qualifications of nominees, and not on whether Senators believe a judge embraces the proper judicial philosophy. Although this is not constitutionally required, I have long believed such a standard is implied because the Constitution does not distinguish between judicial nominations and other presidential nominations. [“The president . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”]

    This makes NO sense. First you say you want approval based on objective qualifications, not judicial philosophy. Then you say this is because the Constitution lumps judges in with ambassadors, public ministers and consuls, and all other officers of the United States.

    First off, “judicial philosophy” has nothing to do with ambassadors, etc. so I have to assume you mean “political philosophy” in their case.

    Second, ambassadors, cabinet heads, and a whole lot of other officers are chosen precisely for their political philosophy. No one in their right mind expects ambassadors, cabinet members, and a host of other officers to be chosen objectively.

    If you want to argue “objective confirmation” for judges, fine, but don’t try to base that on being lumped in with explicitly political appointments in the Constitution.

    1. I agree it seems absurd.

      But I suspect what he’s trying to say is that the Senate should consider only objective qualifications, and defer to the President as regards judicial (in the case of judges) and political (in the case of executive branch) philosophy.

      Which seems just as barmy. If anyone should be interested in the objective qualifications of an executive branch officer, it should be the President. He’s politically responsible for the performance of the Executive branch, and he can’t afford to be overstocked with doofuses. The Senate, meanwhile, is a part of a political branch, and is concerned daily with politics. Why it should be more interested in a nominee’s qualifications than his politics, particularly when it is not responsible for executive competence, is entirely mysterious.

      As for this “implied” indifference to political philosophy, how and where is it implied ? The President proposes, and the Senate agrees or disagrees.

      Are we supposed to assume that it is also “implied” that the President when deciding to exercise his powers of veto over legislation, should be guided solely by the objective qualities of the legislation – whether it is properly spelled, neatly laid out for easy reference and so on, rather than its political content ?

      Also, the paragraph you cite seems to look both ways on the constitutional import of this barmy implication. First he says “this is not constitutionally required” and then he refers to this alleged implication as an inference from the text of the Constitution.

      Well, inferences from the text are often held to be legally binding.

      All in all, a weak piece.

  7. The Senate was 50-50 when Bush made that gesture…and at some point Jeffords switched to an independent to caucus with Democrats.

  8. A nominee who believes in a “living” constitution is nothing but a politician in black robes seeking to impose his values on the country by the device of finding those values embedded in the constitution, or if need be, its penumbra, whatever the heck that is. Hence, such nominees should not be allowed on the bench no matter how qualified they may be in terms of their intelligence or good character. Those opposed to such nominees ought to use every legal tool available to defeat their nominations.

  9. I don’t really care who started it or that interested in playing the blame game.

    All I know is this shit needs to end and whatever is required to make that happens needs to be done.

    1. You’ll do nothing but continue to post lame-ass threats on the Internet.

      1. You like to say people post “threats” but clearly there is none here. Just stop with your lame agit-prop.

        1. You will continue to comply with the preferences of your betters, as has been the case throughout your deplorable life.

          You likely will continue to whine about it, which is fine. Whimpering is permitted. But you will continue to toe the line established by better Americans, Jimmy the Dane.

          Thank you for your compliance. You may resume whining and, if you wish, start ranting.

          Any other clingers want to vent about how much they hate all of this damned progress, or bluster about how they’re tired of being told what to do?

          1. The Grand Reset is going to be a lot of fun…

    2. Cool

      Then what you want is for ACB to be confirmed, and for every single judicial “victory” the Left achieved by blocking Bork to also be overturned

      Start with every single 5-4 ruling where Kennedy sided with the Left

      Because we’re not going to let the Left saunter away with the ill gotten gains the obtained from Borking.

  10. I don’t get it.

    The idea that the Senate should only consider education, experience and temperament and not judicial philosophy while the President considers not only these factor but also judicial philosophy assumes that the executive branch should have more influence over the judicial branch than the legislative branch has.

    If the executive and legislative are co-equal branches, it is not clear why one should have influence on judicial philosophy, but the other should not.

    Much of the rancor here is based on the assumption that the Senate should be a rubber stamp. I do not see why that should be so.

  11. President John Adams lost his bid for re-election in the bitterly-contested election of 1800 which was conducted between October 31 and December 1. (To whom exactly he had lost -Thomas Jefferson or Aaron Burr- would not be finally decided by the House until February.) Two weeks after the election, on December 15, Chief Justice Oliver Ellsworth would resign due to poor health. Adams nominated former chief justice John Jay to replace him. Jay was confirmed by the Senate, but declined to serve. Adams then nominated his secretary of state John Marshall on January 10, 1801. Marshall was confirmed on January 17. Adam’s term would end on March 4.

    Not only had the Federalists lost the presidency in the election of 1800, they had also lost their majorities in both houses of Congress. Nevertheless, a lame-duck President put forth a nominee, and a lame-duck Senate confirmed him. Nobody put up much of a fuss because, frankly, no one considered the Supreme Court particularly important or influential. (Ironically, of course, it would be Marshall who changed that.) One might easily imagine that history might be quite different if there had never been a Chief Justice John Marshall on the Supreme Court, and instead it had been under the leadership of a Chief Justice William Johnson for the next 30 years. (Johnson, for one, favored seriatim opinions over Marshall’s “opinion of the court” innovation).

    And that’s the heart of it. Supreme Court justices are just too powerful. The Founders envisioned the judiciary as the least powerful, or, as Alexander Hamilton put it, “the least dangerous branch.” Would that it were so. In retrospect, perhaps the Federalists should have waited after all.

    1. The judiciary is the least powerful branch. By a lot.

      Mind you, they still have too much power but that’s because Congress keeps writing laws that intrude on every aspect of life. If Congress would repeal a law or ten once in a while, we might prune all of government, including the judiciary, back to something reasonable.

      The problem the Founders missed was political parties. The system worked when Congress had an incentive to actively defend their prerogatives. It broke down as soon as politicians realized they could bypass those constitutional controls by allying (through the parties) with their nominal opponents.

      1. Except we’ve been doing pretty well for over 200 years with factions controlling the process. So whatever’s wrong with our system can’t just be parties.

        I know the de rigeur answer around here is it’s just the size of government that’s changed, but I don’t believe an intensification of existing incentives would change behavior to the extent it has been changed.

        I think it’s
        1) media narrowcasting, allowing people to choose whatever media caters to the demons of their worse nature.
        2) Congress becoming a place not for statesmen but rich folks looking to parlay their wealth into some kind of historical legacy. Hence the craven take no risks Congress of softies just trying to stay in office and not make waves.

        1. Yep. Folks think there is rancor in Congress now, but no one has even been caned yet.

          https://www.history.com/news/charles-sumner-caning-cilley-duel-congressional-violence

          The method of nominating and confirming Justices has worked pretty well through times of discord and times of good relations between the parties. If it ain’t broke, don’t fix it.

          1. I’m open to the idea that Congress has been worse a couple of times throughout history (the Gilded Age corruptapalooza may also track), but mere decorum is not enough to specify the level of dysfunction.

        2. We’re in the breads and circuses stage. The real question is what’s the growing empire on the outskirts that will take over some time in the next hundred years or two?

          1. Maybe. None of us know what the fates write. Just because we only see dark waters around us doesn’t mean we won’t get to land some way we cannot forsee.

            Also: don’t forget the Roman Empire got a couple of centuries after the Roman Republic fell.

        3. Well said, especially the 2nd point. I agree with the first point, but it is possible to choose multiple news sources, regardless of sociopolitical leaning. By my estimate, it’s as much a matter of education, how people have been taught to think, as how they receive information. The inability to accept other viewpoints without mockery or complete rejection is a failing of the modern education system.

          1. It’s possible (witness me, a liberal on the VC), but human nature doesn’t generally seem up to that choice, at least as a broad polity.

            This is a problem we see worldwide, so I don’t think it’s just education. Or if it is, there’s a broad human tendency at work there as well.

        4. Sarcastro,

          I think this is the second time I’m agreeing with you. I do think the 2 party system is broken but agree as well that it’s no the only problem. Your 2 other problems are as significant and noteworthy. I don’t want to limit it to just those 3 but they are certainly looming large in the scope of issues regarding Congress (I would include POTUS there as well).

          I also have to say I prefer this much more reasonable sounding you than the alternative that I had become used to. Kudos.

          1. Thanks – I’ll try and lean more towards sociological stuff rather than getting into it on issues of fact with some the more out-there commenters. It’ll be better for me as well.

            Australia is an interesting case study – voting is mandatory, lots of parties, ranked choice voting. Their politics is still as much of a dumpster fire as anywhere else. Doesn’t mean such reforms (maybe not mandatory voting…) wouldn’t help the US, but they might not either.

            1. I would actually like ranked choice voting and a couple more parties. Even if we have a dumpster fire going at least we know that we had more choice in that happening than we did before.

              At this point I am just about ready to disappear into the wilderness and live off the land for a few years to see if the idiots have finally killed each other so the rest of us can get on with being civil.

              1. No argument – might as well try!

                There’s no way a civil war is viable given how we’re distributed.

        5. Good morning, Sarcastr0. I will disagree that “we’ve been doing pretty well for over 200 years” but I think because we’re using a different definition of the problem. In this thread, I’m specifically talking about the breakdown in the checks and balances of a divided government. That started as early as the Adams administration but it took off like a rocket in the early 20th century.

          The only mitigating factor that’s constrained the process is the voter predeliction for divided government. Throughout our history, it’s been rare for one party to hold all three of the Presidency, a majority of the House and a supermajority of the Senate. But since the Founders didn’t foresee political parties, I don’t see how they could have counted on the happy accident of party-based gridlock.

          By the way, I also agree that our current levels of political “dysfunction” and acrimony are nowhere near historical lows. But I don’t think that’s quite what we should be aiming for either.

          The same is true, by the way, for what you are calling media narrowcasting. Historically, there were lots of newspapers and they each wrote for their own narrow partisan readership. The idea of a common broadcast media was unique to the second half of the 20th century. It doesn’t feel like it to those of us who grew up with it but broadcast is the anomaly.

          1. Morning. Or afternoon, now.

            Separation of powers is not a virtue in itself – it is a means to other virtues. I don’t see prosperity or liberty on the wane since the Adams admin.

            America seemed quite successful for quite a bit of the 20th century. We can talk about race or McCarthyism, but for the post part America was steadily improving in everything including individual liberty.

            The very partisan ‘Golden age of Journalism’ is a *great* point I had not considered. Hrm, kinda puts my insight a bit underwater. Party politics were at their height then as well, along with corruption more or less undreampt of even regarding the current Admin. So what is different now from that partisan age? Twasn’t seperation of powers – parties ran things from judges to Congressmen to the Presidency.

            Though I guess parties are organs of the status quo generally. Something about that has changed recently…

            1. Something about a lessening of personal shame/guilt is in the mix, methinks.

        6. Congress becoming a place not for statesmen but rich folks looking to parlay their wealth into some kind of historical legacy.

          Yeah right. A few eccentrics aside, the Senate is somewhere you go to make money not to spend it. Sleepy Joe reported income of about $16 million between 2017, 2018 and 2019, the majority from “book deals.”

  12. “We have both argued for a world in which judicial nominees receive prompt hearings and up-and-down votes based solely on their objective qualifications — education, experience and temperament.”

    “Judicial philosophy” is a product of education, experience and temperament, or perhaps not?

  13. The rise in contentious judicial nominations is I think largely due to the rise in overreaching judicial decisions. Chief among them is Roe v. Wade which badly overreached and left us with the current vicious political fighting. The Supreme Court could and in my view should have invalidated the state law in question then stopped. Instead the Court went on to create a bunch of conditions and prohibitions which people are still fighting over because the Court largely usurped the legislative function thwarting a nascent movement toward liberalizing the existing anti-abortion laws. That froze the political movement and made it a judicial fight. In

    Contrast that with the way the Court handled school integration or the death penalty. In both cases the court took an incremental approach making rulings that continuously refined the legal doctrines and returned the implementation to the state legislatures.

    For example the much reviled Plessy v. Ferguson permitted segregation but also confirmed African Americans were entitled to all of the benefits of citizenship at a time when many jurisdictions didn’t proved services including public education to African Americans. I have read that the Supreme Court never ruled that any segregated school was actually equal. In this the Court was listening to the societal tenor of the times. By the time of Brown, society was largely willing to accept integration.

    With regard to the death penalty the Court has likewise continuously refined the conditions under which it can be imposed and the procedures that must be followed, returning implementation each time to the states.

    I believe if the Court had handled abortion in a similar way eventually a consensus acceptable to the society at large would have emerged within the last 47 years.

    1. While some of the new laws hadn’t taken effect yet, when _Roe_ was decided, abortion was already legal in 1/2 of the states and where 3/4 of the women — and (unlike now) there were no restrictions on crossing state lines.

  14. To solve a problem, you must first correctly identify the cause.

    I think Scalia was right. In several public speeches and interviews, he said that courts were being asked to decide social issues that properly belong in the political realm. If courts take that role as a legislature of 9 persons, it becomes critical who has seats on the court.

    Roe v Wade was an example. Because it was decided by courts rather than by elections, it caused a deep divide in society that may take centuries to heal, if ever. The argument is that when things are settled politically, the losers are more likely to accept defeat (until or unless they get to reverse it.) Obama was famous for saying, “Elections have consequences.” More people are willing to accept that and to focus their attention on the next election rather than obstructing the current one. (I chose Obama, not Trump, for my example 🙂

    So we can’t fix the problem by tweaking the confirmation process. We can only do it, if the judicial branch refuses to get involved in issues that ought to be settled politically.

    1. anorlunda — Seems like your comment is coherent, but somewhat begs the question. Isn’t the underlying question, “What constitutes a right, vs. what constitutes a political controversy?” Generally, we suppose rights are for the Courts to defend, but political controversies are for legislatures to dispose of. You seem to be arguing that yourself, but assuming the contested part of Roe v Wade breaks your way, and makes it a political controversy. That just seems to deny there is a contest. I don’t think you can get rid of Roe so easily.

      1. If the constitution enshrines a woman’s right to privacy to have an abortion, it also enshrines her right to take heroin, and have a gun to protect herself. It also enshrines her religious liberty to go to church during a pandemic. It also enshrines her property right to sell and contract her labor for whatever wages she can get. Among other things.

        The fundamental issue is that the left and the right want to pick and choose what rights are favored and disfavored. That’s why we have a culture war. As long as the Supreme Court is in the middle of the “which rights are favored or disfavored” business, nominations will be contentious.

      2. This is exactly the issue. The only way to de-politicize the courts is for the courts to take the Frankfurter approach to an extreme and pronounced any controversial case a “political question.”

      3. “What constitutes a right, vs. what constitutes a political controversy?”

        That’s very simple: Was a Us Constitutional Amendment apssed to protect it? Then it’s a right.

        No?

        Then it’s a political controversy.

        Keeping and bearing arms? That’s a right. Free exercise of your religion, that’s a right.

        “Control over your body”? That’s a political controversy. Otherwise suicide would be a right, there would be no FDA, the only things subject to prescriptions would be antibiotics (because your overuse / misuse of antibiotics can harm me).

        If it was not explicitly placed in the Constitution, it’s not a right, and no judge or “Justice” has any business interfering with the political process to advance their point of view.

    2. “Because it was decided by courts rather than by elections, [the abortion question] caused a deep divide in society that may take centuries to heal, if ever.”

      Whether abortion gets legalized by judicial decree or by legislative enactment, opponents of abortion will mobilize against such an abomination, and commentators will talk about how divisive the whole discussion is.

      At present, the abortion-legalizers (and subsidizers) lean on the courts, and that crutch ought to be removed, but they’ll keep fighting in the legislatures even if they lose the courts, so the “divisiveness” will continue so long as there are people who think it should be legal to kill living human beings in the womb.

  15. As long as the Supreme Court is the center of the culture war (abortion, LGBT rights, gun rights, etc), confirmation hearings will be contentious.

  16. Like Wittes and Estrada, I would prefer the Senate to focus on the objective qualifications of nominees, and not on whether Senators believe a judge embraces the proper judicial philosophy.

    This sounds so nice and reasonable, but the reality is that the only way to really de-politicize judicial nominations would be for the federal courts to adopt a sort of Frankfurter-on-steroids approach to selecting cases and decline to take any case that was likely to be politically controversial.

  17. Going back through past Adler posts on this sort of subject, I was led to a comment on one of his pieces which quoted a Federalist Society meeting with Justice Scalia, in which Scalia offered the contrary view to Adler’s, Wittes’s and Estrada’s :

    MODERATOR: Is there a negative affect on the Judiciary of the modern confirmation process? You were confirmed 98-to-zip. Those days are over, aren’t they?

    JUSTICE SCALIA: I think they are over… All this Living Constitutionalism philosophy really begins with the Warren Court, and I think it took the American People a while to figure out what was going on, maybe thirty years.

    But once they have figured out that the Supreme Court is essentially rewriting the Constitution, term-by-term, the old criteria for appointing and confirming judges no longer applies. I mean it’s fine it’s to get somebody who is a good lawyer, that’s very nice, and somebody with a judicial disposition – wonderful. Somebody who is [an] honest man, so forth, that’s all very good. But the most important thing is, what kind of a new Constitution will this person write? Will he put in the things that I like? And take out the things I don’t like? And that’s what’s been going on in recent confirmation processes, at least where the Senate is not overwhelmingly in the filibuster-proof control of one party.

    “Judge so-and-so, do you think there’s a right to whatever – abortion – whatever you hate or love? You don’t?! Well, I think it’s there, and my constituents think it’s there, and I’m not going to put you on the Supreme Court!”

    That’s what’s going on. And it ought to go on, much as I hate that process, I prefer it to the alternative, which is just letting the Supreme Court – without any political control – rewrite the Constitution term-by-term. If they’re going to be doing that, I would like some popular control, even if it’s in this Byzantine fashion that amounts to a mini-Constitutional Convention every time we appoint a new justice.

    1. So Scalia sucks and likes this judicial culture war stuff when his side does it because he thinks his side has a monopoly on virtue.

  18. Odd that you should say he likes this judicial culture war stuff when he actually says he hates it.

    His point is that if one political side starts appointing folks with a “judicial” philosophy of

    “I’M ONLY PRETENDING TO BE A JUDGE, IN REALITY I AM A SUPREME LAWGIVER”

    rather than the traditional “read the effing text whether you like the answer or not” type of judge

    then you’ve already lost the idea of a court. It’s just a supreme legisature pretending to be a court.

    Hence the other side will respond by putting trying to put their own kind of SUPREME LAWGIVER on the court. It’s done, the egg is broken.

    The only way to get back to an actual court, is if both sides accept we have to get back to actual judges.

    Though as he says, the GOP has taken thirty years to understand what’s going on. It’s pretty amazing that in the last fifty years Republican Presidents have appointed fifteen SCOTUS Justices (counting Barrett) while Democratic Presidents have appointed ony four….. and yet it is only now that we are faced with a clear non squishy majority of conservatives on the Court.

  19. A brief history of the Judicial wars:

    Up to 1986: You get confirmed if you’re qualified, filibusters are rare and for the purpose of slowing things down so the facts can come out

    1987: Senate Democrats block Bork because they don’t like his political views, establishing the new rule that a Senate majority can nuke a nominee for political reasons

    1995: GOP takes over Senate, and start applying the new rules to Clinton nominees

    2003: Democrats in the Senate minority start using the filibuster as a tool to block qualified nominees they can not defeat

    2011: Republicans in the Senate minority start returning the favor

    2013: Democrats nuke filibuster “for all nominees except the SC”

    2016: Senate GOP majority follows the Bork rule, and refuses to confirm Obama’s nominee Garland

    2017: Democrats in the Senate minority attempt to filibuster Garland. As he was a conservative nominee replacing a conservative SC Justice, and as the voters had just made Trump President so he could nominate conservatives to the SC, and had returned a GOP Senate so they could confirm conservatives, every single GOP Senator voted to end the filibuster for SC nominees, and confirmed Gorsuch

    2018: Democrats turn to more lies and character assassination to try to block Kavanaugh. Don’t have a majority, so they fail, unlike with Bork

    2020: Trump nominates a conservative ACB to replace a dead RBG

    Every step of the way, it’s been the Democrats who destroyed the previous norms. So when you “both sides” this, all you do is show how dishonest you are.

    Precedent matters. You don’t like the precedents? Then attack the people who created then, not the ones who followed them

    1. Not a bad effort, but I’ll offer a couple of corrections / additions.

      1. In 1970, the Senate rejected two Nixon nominees, essentially on ideological grounds (objections to White Southerners with poor “civil rights” records.) In those days the parties were more ideologically mixed, but the votes show that the dividing line was essentially Southerners and conservatives v. non Southerners and liberals, a fairly straightforward precursor to todays ideologically more pure Republicans v Democrats. Also we saw an early run out for the tactic of disguising political objections behind objections claimed to be on grounds of competence. It was claimed that one of the nominees was not the sharpest knife in the drawer, and perhaps he wasn’t. But that would never have been an objection if he was OK politically.
      2. In 1971 Nixon nominee Rehnquist was filibustered
      3. In 1991 we had the Anita Hilling of Clarence Thomas, introducing a new weapon in the toolkit – accusations of personal misconduct to bolster ideological objections
      4. In 2006 Alito was filibustered

      During your timeline, it should be noted that no Democrat nominee has ever been vilified on personal grounds nor has any Democrat nominee been filibustered.

      In your 2017 bullet, your reference to Garland s/b a reference to Gorsuch.

      1. You have left out:

        1968: President Johnson nominates Associate Justice Abe Fortas to replace Earl Warren as Chief Justice. His nomination is successfully filibustered by a combination of Southern Democrats, led by racist James Eastland, and conservative Republicans.

        As for no Democrat nominee has ever been vilified on personal grounds, there have only been four Democratic nominees since 1968 to the Supreme Court, and Sonia Sotomayor was vilified, for her “wise Latina” remarks among other things.

        1. I left out Abe and I also left out the filibustering of Rehnquist on his transfer from Associate to Chief Justice, since that has no effect on the political balance of the court.

          Sotomayor’s “wise Latina” remark :

          “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

          was made specifically in reference to her role as a judge. (And was not just a one off. It was a regular part of her lecture circuit schtick.) And it indicated her unfitness for the judicical role in the eyes of anyone who thinks that justice should be blind. It was directly relevant to her judicial philosophy.

          You need only to transpose the terms :

          “I would hope that a wise white male with the richness of his experiences would more often than not reach a better conclusion than a Latina woman who hasn’t lived that life.”

          to see that her awareness of her own prejudices was non existent.

          Criticism of her remark had nothing to do with personal vilification – nothing to do with allegations about her private life.

          If Thomas or Kavanaugh had repeatedly said in their own lectures that they felt that because men lead a fuller life in the public sphere, then as men they were better qualified to be judges than women – and had been vigorously criticised for that in their confirmation hearings, no one would say that was viification. It would be proper examination of their biases and their judicial philosophy.

          It should be noted that her service on SCOTUS has confirmed the view that she is not fitted to a judicial role.

        2. 1: Fortas was filibustered for becoming Chief Justice, not for joining the Court

          2: Why was he filibustered? Well, let’s take a look at the record:
          https://www.abajournal.com/magazine/article/the-spectacular-fall-of-abe-fortas
          First, there was a $15,000 payment to Fortas for a summer teaching post. Not only was this considered an extraordinary supplement to his $39,500 government salary, the post was funded by former law firm clients. More significantly for a sitting justice, Fortas revealed he had never stopped advising Johnson—attending White House staff meetings, advising on judicial nominations and reporting on private deliberations by the court.

          Faced with a Senate filibuster, Fortas asked Johnson to withdraw his name. He returned to the court only to face another scandal when Life magazine revealed he had been receiving regular payments from Louis Wolfson, a former Wall Street client convicted of fraud. Under their agreement, Fortas was to receive $20,000 a year for life. He had returned the money, but only after Wolfson was indicted.

          With his reputation shattered and facing calls for his impeachment, Fortas was urged by Earl Warren to resign. He submitted his resignation to President Nixon on May 14, 1969.

          3: Using the filibuster, publicly, to block a corrupt politician (and yes, when he’s advising the President he’s a politician, not a Justice) is entirely different from what the Dems did to Estrada et. al., where they were blocking nominees because the Democrats didn’t like their skin color

      2. In your 2017 bullet, your reference to Garland s/b a reference to Gorsuch.

        Oops. You’re correct, duh

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