Spring 2004
Editor's Introduction


Judicial Nomination Wars
 

Ronald M. Peters, Jr.


 

           On a couple of recent occasions, NPR's Diane Rehm has hosted "debates" featuring C. Boyden Gray, who served as counsel to President George H.W. Bush, and Ralph Neas, the head of People for the American Way, over the Senate's handling of judicial nominees. Gray finds the current resistance of Democratic senators to President George W. Bush, in particular the threat of filibuster, a constitutional abomination; Neas finds some of President Bush's nominees themselves abominable. It does not appear that either is likely to win the other over to his point of view.

            That Diane Rehm should choose to give this issue such attention is one indication of the importance that judicial nomination battles have assumed in contemporary American politics. This issue of Extensions seeks to offer a more dispassionate analysis of the controversy than Mr. Gray and Mr. Neas are inclined to do. Professor Sheldon Goldman of the University of Massachusetts provides both an historical and an empirical context for assessing the current state of play. Two related articles provide further depth of analysis. Jason Roberts of Washington University discusses proposed changes in Senate rules designed to enable nominees to obtain a floor vote. Lauren C. Bell traces the involvement of interest groups in the nominating process.

            Emerging from these articles is a picture of a judicial nominating process that has become deeply immersed in partisan conflict, a Senate that has shirked its responsibility to provide a fully staffed federal judiciary, interest groups fanatically driven by ideology, and an executive branch all too willing to play politics with nominations as well. Both political parties have been complicit in these developments, which suggests that powerful underlying forces are at play. In fact, the struggle over judicial nominations is but one manifestation of an underlying transformation in American politics about which we should all be concerned.

            Recently, Robert G. Kaiser offered a penetrating analysis of Congress's apparently shrinking influence relative to the presidency.1 Kaiser pointed to a number of indicators of this decline including the infrequency of congressional sessions, the absence of members, their relative unfamiliarity with each other, the decline in oversight activity, and a generally obsequious attitude toward the executive branch. Yet in the area of judicial nominations, Congress seems far from compliant with executive will. Through four presidential administrations, the Senate has defeated some judicial nominations, refused floor votes to others, defeated others in committee, and denied hearings to still others. The Senate "hold" has rung the death knell for a number of judicial nominees.

            The general subservience of the Congress to the president can be squared with its intransigence on judicial nominations by simply recognizing that the rules of the Senate empower individual senators and Senate minorities. Thus, judicial nominations are subject to forms of obstruction not as easily applied to the legislative process in general. While it is certainly true that the Senate's rules have provided the opportunity for the minority party to obstruct presidential nominations, the rules themselves do not provide an explanation for why they are being used for obstruction more now than in the past. In some cases, it has been Senate majorities that have held up nominations; in other cases, the minority has done the dirty work. To explain all of this, one must turn to an analysis of the underlying political dynamic. In doing so, we see that the factors that help explain the battles over judicial nominations also serve to explain the otherwise subservient congressional attitude that Kaiser describes.

            Both phenomena are due to "base politics," by which I mean not only that each party has sought to mollify its base voters, but also that this has led to some "base" practices. My space does not allow for a full development of this idea, but I can identify the "basic" causes: electoral realignment, redistricting, and ideology. By electoral realignment, I refer to the gradual transformation of the South from the Democratic to the Republican party over the past two or three decades. The old Democratic "Solid South" is now more nearly a Republican monolith. This shift has transformed the electoral foundations of the two major parties, creating a more homogenously liberal Democratic party and a more homogenously conservative Republican party. More cohesive parties tend to gravitate toward the center of the party rather than toward the center of the institution. The result is more pressure to toe the party line.

            Redistricting has reinforced the naturally occurring shift in underlying political demographics. As Kaiser notes in his article, each party has mastered the technology of redistricting with the result that as few as two dozen House seats are in play in any given election. In decades past, a safe seat meant that a member could afford to take risky votes to support the party leadership when the positions of the national party and those of the local constituents diverged. This is rarely a problem for members today because the safe seat districts have been drawn to ensure a majority of loyal party voters. This enables each party to stake out positions calculated for political advantage.

            Underlying the demographic shift and redistricting effect is the greater force of ideology in politics today. With each party dominated by its ideological center (Democrats to the left and Republicans to the right), ideological appeals serve to reinforce the commitment and stimulate the participation of base voters. The Republican party has become permeated by the interests and values of the religious right; the Democratic party has become increasingly reliant on its diminishing core of union supporters and liberal public interest groups. Ideologically driven groups on the right and left have an incentive to stimulate the passions of their adherents as a means of enhancing their own power and influence. As Lauren Bell explains in her article, interest groups are the catalysts and in some instances the driving force of the nomination battles.

            The result of all of this is the highly polarized politics that we see everywhere around us today, not simply or alone in the arena of judicial nominations. With the two houses of the Congress as narrowly divided as they now are, and a competitive presidential election in prospect, there is little political incentive for the two parties to cooperate in any area. Ironically, judicial nominations might in principle be one area in which the parties might reach accommodation. The value of an independent and non-political judiciary might be recognized by both parties. The simple administrative necessity of staffing the federal bench might encourage a more pragmatic view of the Senate's responsibilities. In fact, there is some evidence that this has occurred. The substantial majority of lower court nominations by both presidents Clinton and Bush have been processed by the Senate, the partisan wars notwithstanding.

            But attention naturally focuses on the higher profile cases of appellate court nominees, and the handful that have sparked the most controversy. These conflicts persist because President Bush has insisted on sending up some nominees who by qualification or ideology are anathema to Senate Democrats. It is these nomination battles over which Boyden Gray and Ralph Neas have sparred, and which have been at issue in the Senate.

            Our articles address several possible remedies. In the Senate, Republicans have proposed changes to cloture rules that would open the possibility of imposing cloture by a simple majority vote. Presumably, any nominee with enough support to earn confirmation would also have enough support to cut off debate. Jason Roberts examines these proposals in depth and concludes that they are unlikely to be adopted and, if adopted, unlikely to do much to remedy the situation, since most nominations are killed before they reach floor consideration. Sheldon Goldman's recommendations accept the reality that nominations can be filibustered. In seeking grounds for accommodation, he suggests that President Bush advance the nominations of at least some of President Clinton's nominees who were blocked by Senate Republicans. He calls for hearings for all nominees and, while accepting the reality of the filibuster, calls for a floor vote to be scheduled for all nominees referred by the Judiciary Committee. Finally, he recommends the use of recess appointments as a means of dealing with a recalcitrant Senate.

            Perhaps most useful and must problematic is Goldman's recommendation that presidents take into account the attitudes of their senatorial opponents. While President Clinton did so, President Bush is unlikely to do so. Clinton, the "New Democrat," sought to tack a moderate course in order to appeal to the electoral center, sometimes angering liberal Democrats. He had no incentive to stir up controversy over judicial nominations. Bush, by contrast, has governed and is running to the right, counting on the solid and enthusiastic support of his party's base voters to carry him to reelection.

            And this brings us to the crux of the problem. For the Bush administration, for congressional Democrats and Republicans, and for the two parties' interest group allies, these judicial nominations controversies are useful theater. They represent inherently, if not entirely, symbolic appeals to the passions of base voters. They are important because, as all sides agree, the courts matter. But it is precisely because the courts matter that these confirmation battles are, in the end, so unseemly and unwise.

Notes

1. Robert G. Kaiser, "Congres-s-s-s: The Giant Hissing Sound You Hear is Congress Giving Up Its Clout," Washington Post, March 14, 2004, p. B01.



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