Judicial Nominations as We Face Two Milestones

by Frank Scaturro

The presidential election of 2012 passed, as most others have, with little focus by voters on the issue of judicial nominations. Yet there are few other issues nowadays on which a president’s decisions can be so impactful.  The life-tenured judges he appoints continue to impact the country long after the president retires, and that impact can be expected to increase with the expansion of judicial power.  Nevertheless, few beyond the base of each political party pay much attention to judicial nominations.

Justice Kagan's Confirmation HearingThis week was no different. Despite the passing of two important milestones — (1) the start of President Obama’s second term and (2) the 40th anniversary of the Supreme Court’s decision in Roe v. Wade—there was little talk of President Obama’s upcoming judicial nominations. It was a missed opportunity. Recent reports on judicial nominations have painted a picture of a broken, dysfunctional process, with historically low confirmation rates and long delays before floor votes.  They usually omit just how much this mess is directly attributable to Roe v. Wade.

That decision, which both pro-life and pro-choice scholars have noted for being poorly reasoned and ungrounded in constitutional text and tradition, did more than any case since the dawn of the 20th century to politicize the Court.  It also helped distort the public understanding of the Court’s role.  To this day, many view the Court as a super-legislature, the final word on this and other contentious issues on which the Constitution was long understood to be silent.  Few among the general public realize that Roe’s dissenters, far from imposing restrictions on abortion, would simply have left the abortion issue to actual legislatures.  When it was decided, however, it commanded a 7-2 majority.  The precedent would play a visible but limited role in several Supreme Court nominations that followed.

By 1987, however, the margin of support for upholding Roe was suspected to have shrunk to as little as a single vote, and the Democrats recaptured the Senate that year.  President Reagan’s recently appointed justices—Sandra Day O’Connor, who had been critical of the Court’s treatment of abortion in her opinions to date, and Antonin Scalia—both appeared to be possible votes to join the original two Roe dissenters, William Rehnquist and Byron White, to overturn the precedent.  Lewis Powell, a swing justice who was part of the Roe majority, announced his retirement that June, and President Reagan nominated Robert Bork to replace him.  What followed, to be sure, was a wide-ranging ideological attack on the nominee that led to his rejection by the Senate.  Perhaps the biggest fear of his opponents, however, was the likelihood that he would be a vote—maybe the decisive fifth vote—to overturn Roe.

The politicization of the process was affecting nominations not only to the Supreme Court, but also to the lower courts, especially the circuit courts that serve as the on-deck circle for the vast majority of modern Supreme Court nominations.  In 1987, Senate Democrats denied hearings to seven of President Reagan’s circuit court nominees and denied floor votes to two additional circuit court nominees.  According to the Congressional Research Service, during Reagan’s final two years in office, his district and circuit court nominees set records for the time they waited for the Senate to confirm them—nearly three times as long as the historical figures for most prior congresses.  The delays continued over successive presidencies and were especially pronounced with circuit nominees.  President George W. Bush’s circuit nominees waited over five times longer for confirmation than Reagan’s did;  Obama’s had somewhat shorter waits.

Acrimonious confirmation battles have increased at every level of the federal judiciary, but not with equal intensity from both parties.  Two of the three vacancies to the Supreme Court that faced Republican presidents between 1987 and 1991 met with bitter opposition as Bork was rejected and Clarence Thomas squeaked by.  Republicans did not respond in kind when President Clinton nominated Ruth Bader Ginsburg and Stephen Breyer.  They were confirmed respectively by margins of 96-3 and 87-9, despite a number of controversial positions Ginsburg had taken during her career that Republicans chose not to highlight.  The 11 years that followed under a sharply divided Court of unchanging composition saw circuit court confirmation rates steadily drop.  The low point in the judicial nomination process was reached during George W. Bush’s term, when Democrats engaged in wholesale filibusters of circuit court nominees.  Democrats filibustered ten Bush circuit nominees outright and blocked several more with the mere threat of a filibuster.  D.C. Circuit nominee Miguel Estrada asked to have his nomination withdrawn after being subject to seven cloture motions.

Following the “Gang of 14” deal to break the logjam, the filibuster issue seemed—at least for the moment—to have passed by the time Bush had his own nominations to make to the Supreme Court.  The confirmation of John Roberts occurred with a vote of 78-22, with half of the Democrats voting against him.  Samuel Alito followed with a 58-42 vote largely along party lines (with four Democrats supporting him), but not before the filibuster returned in what turned out to be a failed effort supported by 25 Democrats.  Obama’s first term included two Supreme Court nominations: Sonia Sotomayor was confirmed by a 68-31 vote with nine Republicans in support, and Elena Kagan was confirmed 63-37 with five Republicans in support.

Party-line voting or something close to it may be the new reality that has emerged for Supreme Court nominations, which used to occur routinely for well qualified nominees at unanimous or near-unanimous margins. Confirmation rates for circuit nominees have dropped precipitously from 93% during Jimmy Carter’s administration to 71% for the Bush administration and Obama’s first term.  Overall judicial vacancies have increased during Obama’s term, but a Brookings study concludes that is “because of, comparatively, fewer nominees, later submission dates, and a weaker district nominee confirmation rate.”  Despite this trend (and the criticisms coming from Democratic circles), President Obama has had more confirmations during his first term (171) than did his predecessor during his second term (119), and both terms occurred under the similar circumstance of having time occupied by two Supreme Court nominations.

On the root cause of the polarization of the modern judicial nomination process, Justice Scalia recently noted the “seductive philosophy” that holds that “the Constitution means whatever I care about.”  As “the Court was revising the Constitution term by term,” the “old criteria for selecting justices and even lower court judges” gave way to the question,  “Will this person write the new Constitution thatI like?”  From the Bork hearings on, “Much as I dislike the spectacle of confirmation hearings now, . . . .  [a]s long as the Court is revising the Constitution . . . the people ought to have some say, and they ought to be able to ask the nominee, ‘What kind of Constitution are you going to give us?’”

As the Court takes more issues away from the people without constitutional warrant, it should be no surprise that the people try to take the institution back in the form of a contentious nominating process.

None of this is to say that the Court can or should try to avoid all political controversy. Such controversy can be a natural byproduct of the Court doing its job of reviewing the results of the political process.  The Constitution speaks to many issues in ways that can provoke powerful political reactions, as when a popular law is overturned.  When it came to civil rights, the Court acted heroically when it disinterred the Reconstruction Amendments that had gone long ignored and overturned the “separate but equal” holding of Plessy v. Ferguson.  In contrast, when it illegitimately seizes from the people control of an issue, the acrimony that follows reflects discredit on the Court and our system.  Roe, which seized an issue that has carried tragic consequences for the country, demonstrates that more than any issue of our day.

During this Supreme Court term, there is a prime candidate to extend Roe’s methodology.  The same-sex marriage cases United States v. Windsorand Hollingsworth v. Perry will yield decisions that may or may not address the constitutionality of the Defense of Marriage Act or directly address whether the Fourteenth Amendment compels every state to recognize same-sex marriage.  If a sharply divided Court gets to the merits of either issue, Justice Anthony Kennedy, who assumed what the Senate blocked from becoming the Bork seat, may well be the swing vote.  President Obama’s about-face in support of same-sex marriage last year was accompanied by his statement that, despite his own changed views, it is up to the states and not federal legislation to decide the issue.  He was having it both ways, however, because his appointees to the Court are likely to advocate one rationale or another to override state preferences on this issue.  (His Second Inaugural Address, incidentally, included sweeping enough language on the subject to call into question whether he will continue to pay even lip service to the state deference he advocated on the campaign trail.)  Whatever happens this year, a second presidential term brings with it real possibilities of more vacancies on a sharply divided Court that can be expected to act increasingly like a super-legislature in charge of divisive political issues the Constitution does not address.  In other words, do not expect the judicial nomination process to become unbroken any time soon.


Frank Scaturro is a former Counsel for the Constitution on the Senate Judiciary Committee and Republican and Conservative candidate for the United States House of Representatives in New York’s 4th Congressional District.

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