Judicial Nominations

Of Biden, Bush, and the History of Judicial Confirmation Fights

Imagine how things would be different had a 2002 Bush proposal to deescalate judicial nominations been adopted.

|The Volokh Conspiracy |

There is no question that judicial confirmations have become more contentious over the past thirty years. Things were relatively peaceful from the mid-1970s until the mid-1980s. President Carter had no Supreme Court nominations, but saw a record number of lower court nominees confirmed, including one Stephen Breyer during 1980s lame-duck session.

The Reagan Administration sought to counter the influence of Carter's nominees (and the perceived progressive tilt of the federal judiciary generally) by emphasizing the judicial philosophy of prospective nominees. This led to the circuit nominations of folks like Antonin Scalia, Robert Bork, Frank Easterbrook, Douglas Ginsburg, Stephen Williams, J. Harvie Wilkinson, and Ken Starr, among others.

In 1985, some Senate Democrats began strategizing how to stall or block Reagan's judicial nominees, but they were wary of opposing Reagan's nominees on ideological grounds. "You get on awfully thin ground rejecting [judicial] nominees on an ideological basis," commented Senator Paul Simon  in the Washington Post (11/12/1985). Thus they settled on a strategy of more careful scrutiny of nominees' records and, once they took the Senate in 1987, delaying confirmations.

In 1992, then-Senator Joe Biden suggested the Senate should not consider Supreme Court nominees once the "political season" began, particularly if the White House and Senate were in opposite hands. This was already his practice with regard to key circuit court seats (e.g. Hope & Rymer in 1988; Roberts, BeVier & Boyle in 1991-92), and he wanted it to be the rule for the Supreme Court too. Senate Republicans returned the favor in 2000, holding up some of Clinton's nominees, including one Elena Kagan.

In May 2001, President George W. Bush put forward an impressive slate of circuit court nominees. The list included the likes of John Roberts, Miguel Estrada, and Jeff Sutton. It also included Roger Gregory, who Bill Clinton had recess nominated to the Fourth Circuit after Senate Republicans blocked him, and Barrington Parker for the Second Circuit, as a gesture to New York's Senate delegation. This was the most significant effort to de-escalate judicial confirmation fights of the past 35 years, but it did not bear fruit.

Hopes for rapid confirmations of Bush's nominees dimmed once control of the Senate flipped in June 2001 when Senator Jeffords switched parties. Boosted by Senator Schumer's call for explicit evaluation of judicial ideology, Senate Democrats slow-walked Bush's nominees, particularly those deemed too conservative.

Republicans sought to make the blockade of judicial nominations into an election issue in 2002. President Bush aided this effort by giving speeches in key battleground states. Shortly before the election, on October 30, he also gave an address on judicial confirmations in which he made the case against obstruction of judicial nominees.

We must have an evenhanded, predictable procedure from the day a vacancy is announced to the day a new judge is sworn in. This procedure should apply now and in the future, no matter who lives in this house or who controls the Senate. We must return fairness and dignity to the judicial confirmation process.

In this speech, Bush proposed a set of principles for judicial nominations that would guide the conduct of all three branches to ensure the orderly nomination and confirmation of federal judges.

First, I call on Federal judges on the courts of appeals and district courts to notify the President of their intention to retire at least a year in advance, whenever this is possible. Because the nomination and confirmation of a Federal judge is a lengthy process under the best of circumstances, judges who retire without advance notice can unintentionally create a judicial vacancy that can last for many months. The request for one year advance notice builds on existing policy of the judiciary and will help us work toward a system in which a new Federal judge is ready to take the bench on a day the sitting judge retires. That's the goal.

Second, I propose that Presidents submit a nomination to the Senate within 180 days of receiving notice of a Federal court vacancy or intended retirement. In other words, we have a responsibility as well to make sure the judiciary is sound and whole. This will speed up the sometimes time-consuming process of obtaining recommendations and evaluations from home-State Senators and Representatives and Governors and bar leaders, while leaving ample time for Presidents to vet and choose nominees of the highest quality.

Third, I call on the Senate Judiciary— Senate Judiciary Committee to commit to holding a hearing within 90 days of receiving a nomination. A strict deadline is the best way to ensure that judicial nominees are promptly and fairly considered, and 90 days is more than enough time for the committee to conduct necessary research before holding a hearing. That's plenty of time.

Finally, I call on the full Senate to commit to an up-or-down floor vote on each nominee no later than 180 days after the nomination is submitted. This is a very generous period of time that will allow all the Senators to evaluate nominees and have their votes counted.

The third and fourth principles could have been embodied in the Senate rules, much like the filibuster, to protect against opportunistic behavior by Senate majorities. Some Senate Democrats on the Judiciary Committee had endorsed similar principles in the late 1990s, even proposing legislative language, but they had no interest in this approach now that the show was on the other foot.

President Bush's proposal was never adopted. Senate Republicans retook the Senate, and Senate Democrats responded with the first-ever filibusters of circuit court nominees. Prior to 2003, there had been no meaningful history of cloture votes, let alone filibusters, of judicial nominees. Five of Bush's circuit nominees were ultimately blocked this way (despite the Gang of 14 deal), and Senate Republicans returned the favor in 2009 (while also offering to eliminate judicial filibusters for both sides). After Senate Republicans used the filibuster to block five of Obama's appellate nominees, Senator Reid invoked the nuclear option. Republicans nuked the filibuster for Supreme Court nominees in 2016, and the rest is history.

Given this history, it is interesting to think how things might have been different had President Bush's 2002 proposal been adopted by the Senate. Among other things, Miguel Estrada would have been confirmed, and there would be far fewer judicial emergencies on federal district courts.

Note that had such rules been in place, the Senate would have considered President Obama's nomination of Merrick Garland to the Supreme Court, and he would likely have been confirmed. By the same token, it's unlikely the Senate would have rushed to confirm Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg under a presumptive schedule that allowed for more time. But Bush's proposal, like his effort to de-escalate the judicial confirmation fights by re-nominating a blocked Clinton nominee (even though his party had Senate control), was rebuffed. And so we descended further in the downward spiral of judicial confirmations.

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  1. Who knows, Professor Adler…maybe a viral case of ‘reason’ will break out in DC. I find it hard to quarrel with the essentials of POTUS Bushs’ proposal.

    – 1 year advance notice of retirement by federal judges
    – Guaranteed nomination within 6 months of announcement/vacancy
    – Guaranteed hearing completion within 3 months of nomination
    – Guaranteed floor vote within 6 months of nomination

    There would still be plenty of opportunity for Senate mischief, but at least the process would be outlined. If adopted though, what stops the Senate from just changing the rule when they like?

    1. Their sense of fair play?

      1. Ok, I LOL’d. I appreciate the well timed jocularity.

    2. Ultimately that bush plan would not have helped, because it would only further entrench the committee hearing process.

      The committee hearings on nominees (all nominees, not just judicial) has never been anything more or less than political circus. An excuse for the opposition to slander the nominee with impunity.

  2. Under these rules Garland would now be on the Court. Though it would not have affected any Republican nominated judges.

    1. Nope. Since Republicans controlled the Senate, he would not have received a majority.

      1. On his prior pass through the Senate, Garland was confirmed by a 99-1 vote. On what are you basing the idea Garland would not have received a majority?

        1. Your predictions about hypothetical events would be more convincing if your account of actual historical events was reliable. He was not confirmed 99-1. He was confirmed 76-23, nearly 20 years – and about six full campaigns – earlier, in the judicial confirmation wars.

          1. Hey, at least he didn’t invoke Honest Abe….

          2. That’s true, although I seem to remember that the 23 Republicans didn’t voice any objections to Judge Garland specifically, but didn’t think the DC circuit needed another judge. At least that was the publicly stated reason. It wasn’t an election year either.

      2. McConnell blocked it because he knew he didn’t have the votes. Faced with past declared Republican support of Garland, which the media would certainly not let them forget, some Republican senators in swing states would have balked at casting a “no” vote and demonstrating their servility and hypocrisy. McConnell saved them from that, for which one assumes they were grateful.

      3. Without a doubt he would have prevailed in an up-or-down vote.

        We know this very clearly because otherwise Mitch would have held that floor vote rather than bottle him up.

        1. No. If he holda a vote, Obama just nominates someone else.

          By not holding a vote, McConnell stalled the process.

          (He also wanted to protect vulnerable members. But had he been required to, they would have voted it down.)

          1. Hmm. Obama could’ve withdrawn Judge Garland and nominated someone else anyway. It might just have been to protect vulnerable members, but I suspect he didn’t have the votes to defeat Judge Garland. Or he wasn’t sure he had them. Just my guess.

            1. Dilan explained that McConnell’s announcement that the Senate wasn’t going to consider any nominee, woud deal with any nominee that Obama proposed.

              So it wouldn’t have mattered if Obama had withdrawn Garland and nominated someone else. McConnell would simply have repeated that the Senate wasn’t going to consider anyone.

              Whereas, if he had simply allowed a vote to go ahead and defeated Garland, he’d have had to spend the whole of the rest of the year voting down each nominee that Obama put forward.

        2. Anyone who says “without a doubt” is whistling past the graveyard.

    2. And is “Garland” going to be your dying word like “Rosebud“ was for Kane?

      1. I’m still mad they rejected William B. Hornblower.

      2. A garland of rosebuds? Maybe a wreath.

    3. 1. He might be on the Court. Getting a vote and getting confirmed are not the same thing.

      2. It would have affected several Republican nominate judges, including Miguel Estrada.

      Indeed Estrada would be more likely to be on the Supreme Court than Garland, since had he been confirmed in 2001 to the DC Circuit Court of Appeals, he would probably have got the Roberts or Alito slot.

  3. Things were relatively peaceful from the mid-1970s until the mid-1980s. President Carter had no Supreme Court nominations, but saw a record number of lower court nominees confirmed, including one Stephen Breyer during 1980s lame-duck session.

    The Dems had a filbuster proof Senate majority throughout the Carter Presidency, and Congress created an additional 152 judicial seats for Jimmy to fill. So not entirely surprising that he appointed a record number of lower court judges. The “peace” during Jimmy Carter’s Presidency was a Carthaginian peace. Any fool can do peace on those terms.

    The GOP then had a Senate majority for the first six years of Reagan’s Presidency and then……”Senate Democrats began strategizing how to stall or block Reagan’s judicial nominees……they settled on a strategy of more careful scrutiny of nominees’ records and, once they took the Senate in 1987, delaying confirmations.”

    The “peace” of mid 1970s to mid 1980s can be more realistically viewed as the minority declining to open fire on the majority. As soon as the Ds got a Senate majority during an R President’s tenure, they started delaying confirmations as a matter of policy.

  4. So the whole thing is the Democrats’ fault?

    it’s unlikely the Senate would have rushed to confirm Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg under a presumptive schedule that allowed for more time.

    I don’t see why this follows at all. The rush stems purely from political considerations, and has nothing to do with lack of time.

    1. Nor is it a “rush” either. If ACB gets appointed on say 2 November that’ll be 34 days from her nomination.

      Which will make her nomination to appointment slower than :

      White (8 days)
      Fortas (14 days)
      Whittaker (17 days)
      Burger (17 days)
      Stevens (19 days)
      Roberts (23 days)
      Goldberg (25 days)
      Blackmun (27 days)
      O’Connor (33 days)

      Ginsburg herself was “rushed” through in only 42 days.

      As Prof Adler is styling himself as historian of judicial confirmations, it would be enlightening if he could point us to contemporaneous coverage marking Congressional, media or public concern at these other “rushed” confirmations.

      1. Lee, were any of those plausible glossolalia threats during oral arguments?

      2. RBG was a special case, because Bill Clinton got Senate Majority Leader Orrin Hatch’s permission to nominate her before he nominated her.

        1. I think that’s a big issue. Just consent and no advice.

  5. Good post but the absence of discussion of Judge Bork’s case is a glaring omission. IMO, today’s hyperpartisanship all traces back to the origin of Borkification.

    1. It’s so silly to whine about Bork. The worst you can say is that his record and writings were exaggerated a little. That was in keeping with his own way of writing and speaking; he took a bit of pleasure in shocking his audiences and readers.

      And there was very good reason to oppose him rigorously: his nomination was the fulfillment of a promise which Nixon had given him that he would be rewarded with a SCOTUS nomination in exchange for firing Special Prosecutor Archibald Cox (the “Saturday-Night Massacre”). Reagan was giving him the promised bribe.

      The Republicans’ expressed position during the whole confirmation-battle was kind of surprising. They argued that NOTHING about a nominee should be considered by the senators AT ALL, except for the nominee’s professional resume (“qualifications”) and clean criminal/professional-ethics record (“character”). NOTHING about the nominee’s judicial philosophy or political beliefs, no matter how extreme, outrageous or nutty, should be considered. His previous opinions, rulings, academic papers and lectures, actions in political office and in private practice, should be OFF-LIMITS to the senators, should not even be READ by the senators. Hypothetically, even if he had, say, publicly proclaimed that the Federal Reserve is secretly run by Freemasons, or that fluoridation of water is a communist mind-control plot, or that biological evolution is a hoax, or that states should be allowed to impose a very large poll-tax, or that creditors whose debtors default on their debts should be allowed to punish the debtors by cooking and eating the debtors’ children, this should not matter to the senators, should not be considered. Any such consideration would be “a litmus test” or “politicizing the Court”.

      Sounds impossible, right? But the Reaganites all said it–politicians, pundits, journalists, and even student activists.

    2. IMO, today’s hyperpartisanship all traces back to the origin of Borkification.

      Not according to Adler’s thesis, which is that the origin is the decision of the Senate Democrats in the mid 1980s to resist Reagan judicial appoitments, gathering pace when they got the majority.

      Bork is not a special chapter of this, he is merely a page within that chapter. Other pages in this chapter would cover the 1986 Rehnquist filibuster, Sessions and Thomas.

  6. As long as we have at least two political parties, there will never again be anything “civil” about a judicial nomination.
    However, we do have a procedure, and it is being followed.
    The President nominates, the Senate confirms.
    The fact that there is ranting and raving and wailing and gnashing of teeth around the confirmation because of the political situation doesn’t change the process.

  7. Some of us care less about what the rules are than they be even handedly applied no matter which party is in power at the moment. If Garland had gotten a vote, I’d be fine with Coney Barrett getting a vote. Since he didn’t, neither should she. And I sometimes wish it were possible to have some kind of a fairness commission that were empowered to tell each major party, “You are stuck with the rules you set when you were in power.”

    1. I think that’s a fair point. The problem is that the parties dispute what the rules are, because most of them are not rules but “norms.”

      And as Adler’s history shows, norms have been being trampled underfoot for a long time. You are sore about SCOTUS, Republicans are sore about the Appeals Courts and the DC Circuit in particular.

      Everyone has their grievance, though how a Democrat can imagine himself be aggrieved is puzzling to me, since every new offensive in these wars has been started by the Dems.

      But however sore people may be, I do think it would be sensible to write these alleged norms down, indeed write them into the Senate Rules as rules. While this remains undone, we can only suppose that what are offered as norms remain mere political stances, discardable at convenience.

      My own preferred norm / proposed Senate rule is

      1. The Senate should do, or not do, whatever it likes with a nomination, according to the majority’s perception of political convenience
      2. Tha tha tha that’s all folks !

      This does at least conform to the reality of politics.

      If we wish somehow to constrain the complete freedom of the Senate to deal with nominations as it pleases, and if a consttutional amendment is out of the question, then we have only shame to fall back on. And this has proved a weak constraint to date.

      Senators, on the whole, are fairly loathsome and dishonest creatures, and the blame for this lies squarely with the voters. Any voting public that can send a creature as revolting as Ted Kennedy to the Senate no fewer than nine times, fully deserves to get it “good and hard.”

      1. Every new offensive has not been started by Democrats but go ahead and believe that if it makes you feel better. Democrats confirmed Anthony Kennedy in Reagan’s last year even though they could have insisted the seat stay open until after the election.

        As for Ted Kennedy, he kept getting re-elected because he worked his butt off for the people of Massachusetts. Whatever his personal failings may have been, he was one of the most effective senators ever.

      2. though how a Democrat can imagine himself be aggrieved is puzzling to me, since every new offensive in these wars has been started by the Dems.

        Not being able to understand the other side’s grievance should be a clue that you’re not being objective at all.

        1. Well I’ve heard the Garland complaint stated often enough. But when toasted over a light flame it always seems unconvincing.

          1. it’s not the first time a Senate majority of one party has declined to confirm the SCOTUS nominee of an opposing President. And even further from the first time the Senate leadership of the party opposed to the President has tried to block his nominee.

          2. Nor is it the first time that an attempt has been made by the opposing party leadership to prevent an up or down vote on a SCOTUS nominee.

          3. Nor is it the first time that the particular tactic used by Mitch – declining to consider a judicial nominee – has been used by the Senate majority to prevent a nomination proceeding.

          The real grievance is that Garland did not get on the Court, not the particular procedure that Mitch deployed.

          I appreciate that there is a subsidiary grievance that Mitch’s excuse was a low political stratagem, unworthy of the American Republic.

          But if we are to weep and stamp our feet merely because we discover that the other side’s low politicians are low politicians, when will the weeping and stamping end ? Can supporters of the party whose last three Senate leaders were Tom Daschle, Harry Reid and Chuck Schumer seriously believe that Mitch McConnell has broken a norm for fine honest plain dealing Senate party leaders ?

          1. I’ve never found the argument that both sides do it to be particularly persuasive. My mother certainly didn’t find “but everybody does it” to be a strong argument. To the extent that both sides do it, both sides need to stop, and that has little bearing on the fact that the Republicans are the ones doing it now.

            Your argument seems to be that both sides should keep doing it. I’d like to think we’re better than that.

            1. Well I was hoping my comment would help you appreciate that “the Republicans are the ones doing it now” is wrong. They haven’t broken any norms.

              1. failing to confirm, or even offer a hearing to, a nominee is not norm breaking, it’s been done before…by Democrats
              2. confirming a nominee from your own side’s President is not norm breaking, it’s been done before….by everybody
              3. offering weasely explanations for your behavior is not norm breaking, it’s been done before…..by pretty much everyone since Cain

              Whereas the Democrats have been the innovators in :

              4. voting down enemy SCOTUS nominees on ideological grounds – Bork (if you wish to ignore history as ancient as Nixon’s defeated nominees
              5. trying to shoot down enemy SCOTUS nominees with allegations of scandalous personal misconduct – Thomas, Kavanaugh
              6. filibustering SCOTUS nominees – Rehnquist, Alito, Gorsuch, Kavanaugh
              7. slow walking enemy judicial nominees when in the Senate majority (see Adler above re mid 1980s D tactic shift)
              8. ignoring nominees and running out the clock a la Garland
              9. filibustering Circuit court nominees
              10. nuking Senate rules on filibustering

              Rs have done some – but not all – of 4 to 10, by way of response, but the Ds have always punched first.

              My mother was always keen to stop arguments and break up fights, but she wasn’t wholly indifferent to who started it.

              My argument is that it is naive to assume that both sides are going to do otherwise than use their Senate power to confirm judges they like and not confirm judges they don’t like, it would be best to assume that the norm is …what the Senate majority wants, it gets.

              If you would like more decorous, chivalrous rules I’m all ears, both for the rules and for your proposed enforcement mechanism. As the chap says higher up the page, “sense of honor” isn’t going to do it for me.

              1. I’m not opposed to voting down a nominee on ideological grounds. If I were a senator and the president sent us a nominee who believed Plessy v Ferguson was correctly decided I’d vote no. I am opposed to not taking votes.

                I would propose a Senate rule that any nominee who has not received a vote in six months be deemed confirmed, and also a provision that that specific rule requires a 2/3 majority to repeal. That way the Senate can reject a nominee if it chooses but cannot obstruct just to obstruct. Garland would have gotten a vote. Coney Barrett would not necessarily since she’s within the six months, but with a GOP majority it wouldn’t matter.

                1. I would propose a Senate rule that any nominee who has not received a vote in six months be deemed confirmed

                  I’m not sure that this would pass muster constitutionally, as “consent”. Maybe it would maybe it wouldn’t. The argument that it would be consent is that the Senate can make its own rules; the argument against is that without a vote in the Senate roll call register, do you have sufficient evidence of consent ? Is deemed consent, consent ? Or does it have to be actual consent ?

                  I confess that, constitutional or not, I am uncomfortable with any kind of deeming of votes in Congress. Has a nasty banana republic sort of air.

                  and also a provision that that specific rule requires a 2/3 majority to repeal.

                  Oh Sleeping Beauty, where have you been ? ALL Senate Rules, according to Senate Rules, need a two thirds vote to change them.

                  But when your precious rule is properly applied by the presiding officer, all it takes is a challenge from the floor and a quick vote to determine whether or not to support the ruling of the presiding officer. And if a simple majority of Senators say not, your rule is toast.

                  Now you might say that this is well, a lie. For the presiding officer has clearly stated your simple rule entirely correctly, and the Senate majority has denied its existence, even though it’s down there on paper as clear as clear can be. This isn’t some abstruse argument about interpretation. It’s like the jury says “Not Guilty” and the Judge says, “Ok, but I’m taking that as Guilty and you’re going down for 9 years.”

                  And you might say that this is such a blatant norm-nuking bit of dishonesty that even accepting the low moral character of the Senatorial corpus, no Senate majority would ever take the political risk of such in your face dishonesty. For even its own supporters would turn on it, and tear it limb from limb. Or at least there would be enough honest Senators, or at least prudent Senators, who would break ranks and prevent this outrage.

                  But it turns out, you’d be wrong. because we’ve been here before. And there was no great rumpus from the press, no howl of embarassed rage from the supporters of the weasels, and only three of 55 Senators on the majority side voting against the nuclear bombers.

                  So forget about two thirds rules. Unless you’re going to put them in the Constitution. And even constitutional provisions are not safe from the sort of weasels who are willing to keep on adding Justices until they have a majority of loyalists on the court, banana republic style.

                  1. The argument that it’s constitutional is that the Senate gets to decide *how* it consents.

                    With respect to your final paragraph on court packing, you realize that’s only an issue because of Merrick Garland, right? The Democrats, rightly or wrongly, see it as using self help to take back what was stolen from them. I know that’s not how you analyze it, but the problem with escalating is that things escalate.

                    I believe that currently most senate rules can be changed by majority vote, and were the scenario you suggest of overruling the chair to actually happen, I doubt there would be actual consequences. Whichever party was on the losing side would bitterly complaint and plot revenge. At which point, the problem with escalating things is that things escalate.

                    However, let’s talk about the elephant in the room (and I don’t mean the symbol of the GOP). The only reason these shenanigans happen is because anti-democratic institutions — in this case two senators per state regardless of population — insulates the Senate from the wrath of the voters. The Mississippi delegation knows that it will get re-elected so long as it runs as Republicans, and the New York delegation knows that their seats are safely Democratic. Whatever may be the merits of anti-democratic institutions, one major side effect is lack of accountability to the voters. Give us senators elected proportionate to population, with non-gerrymandered seats, and that will change. Otherwise, just accept that anti-democratic institutions make shenanigans more likely.

                    1. With respect to your final paragraph on court packing, you realize that’s only an issue because of Merrick Garland, right?

                      I’m afraid I don’t even believe that. If Scalia had died in 2017, and we’d finished up where we are now, the Dems would just be using your fourth paragraph instead of Garland. Senate unfair, Electoral College unfair, waaaah !

                      The Democrats, rightly or wrongly, see it as using self help to take back what was stolen from them.

                      Wrongly. But instead of reheating all the reasons why Garland was not norm-breaking (except – just for fun – repeating that it was so norm-breaking that the man himself had been Garlanded twenty years previously !) – let’s just make a bet. There’s lots of chatter amongst the stolen seat chattererati that two seats have been stolen. But there’s not even a conceivable rational argument that two seats have been stolen. If Scalia/Garland was a stolen seat, then Ginsburg/Barrett isn’t. And if Ginsburg / Barrett is a stolen seat then Scalia / Garland wasn’t.

                      But if the Ds win the Presidency and a Senate majority and proceed to nuke the legislative filibuster and pack the Court, will they create just enough seats to “take back” one “stolen” seat, leaving themselves still in a 6-5 minority on SCOTUS ? I’ll bet no. They’ll “take back” enough to put themselves in majority.

                      Do you want to take the other side of that bet ?

                      were the scenario you suggest of overruling the chair to actually happen, I doubt there would be actual consequences.

                      What is this “if overruling the chair were actually to happen” ? It DID happen.

                      Whichever party was on the losing side would bitterly complaint and plot revenge. At which point, the problem with escalating things is that things escalate.

                      Except that the losing side did not escalate. The result of overruling the chair was to enable Obama to add 14 more Appeals Court judges and 82 District Court judges, in the 13 months before the Ds lost control of the Senate in Jan 2015.

                      All the Rs did was use the new rule that the Ds had created with their nuclear option, to confirm their own judges. That’s not escalation, that’s playing by the new rule.

                      two senators per state regardless of population

                      What’s your work around for Article V ?

                      “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”

                      The reason why each State gets two Senators is that the United States is a federation of states not a unitary state, and equal Suffrage in the Senate is an unamendable (without consent) term of membership.

  8. In 1985, some Senate Democrats began strategizing how to stall or block Reagan’s judicial nominees, but they were wary of opposing Reagan’s nominees on ideological grounds.

    And what provoked this strategizing?

    Could it be that Reagan was making much more explicitly ideological appointments than previous Presidents? Maybe not. I don’t know, but I wouldn’t be surprised. It’s certainly true that the GOP took a decided rightward turn with Reagan.

    If you are going to claim that the Democrats changed course in 1985 you might offer some possible explanation as to why. Nobody just woke up one morning and decided to block nominees.

    1. And Carter, LBJ, and JFK nominees all had exactly no political partisanship. They were all completely naive about politics, absolutely ignorant of everything political.

      1. Not what I said. Why so damn belligerent?

        But, JFTR,

        JFK: Arthur Goldberg, Byron White
        LBJ Thurgood Marshall, Abe Fortas
        Carter: No SCOTUS appointments.

        I doubt White would be an attractive nominee for any Democrat today, and Fortas was more a crony appointment than a political one.

  9. Is this why Bush made the mistake of nominating liberal Anthony Kennedy?

    Most of the arguments I’ve heard for “fairness” reform of judicial nominations are based on the supposed fact that Robert Bork was unfairly rejected. I don’t think he was treated unfairly at all.

  10. Only the jews will take the concept of advise and consent to such obstructionist levels. Senate never held the hearing circus until Wilson nominated a jew to SCOTUS…then all hell broke loose. Same of fight of good vs. evil. Eliminate the jew, eliminate the circus….simple.

    1. There is one one fitting response to people like you, Pavel: Am Yisrael Chai!

  11. Those rules wouldn’t have made a difference, for the same reason that the old system broke down in the first place: in today’s political environment, every battle is a fight to the death, and any rule or norm that doesn’t help you win gets discarded. Who could enforce these Bush rules? No one. The whole system relies on everyone policing themselves, and why would they do that? At some point in the past a handshake and respect for tradition was enough, but that isn’t true any more, and hasn’t been for decades. Voters reward their partisan standard-bearers who take the most aggressive action and punish the compromisers. Our politicians are taking cues from us, and we hate one another only a little less than we fear one another. “If we do this to them now, they’ll do it to us later,” has been replaced with “If we don’t take this chance to screw them now, they’ll certainly screw us later.”

    Only by looking at judicial appointments in a vacuum could you propose something like this as a solution. This is just one front in a larger political war. When senators shut down all government services, threaten to default on the national debt, and call each other traitors on the senate floor, how could you expect them to be reasonable on this one point?

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