The Volokh Conspiracy

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"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.


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.