If you assume, as Alex Pareene does (and I think he is justified), that the Republicans would have eliminated the filibuster for judicial nominees even if the Democrats didn’t do it, then there really was little to no reason for the Democrats to show restraint. However, that doesn’t mean that there isn’t a reason to lament the change.
One thing that the filibuster accomplished, however imperfectly, is that it created a bias toward nominating moderate judges. The need to attract at least a small handful of support from senators across the aisle meant that bomb-throwers rarely were even considered for the federal bench. Of course, this created a perverse incentive for ambitious lawyers and judges to hide their true beliefs, lest their record block their career path.
Personally, I’d love to have openly progressive judges serving on the federal bench, but I’d trade that not to have openly conservative judges on the bench. On the whole, I’d like to see a less politicized judiciary, as I see partisan rulings as undermining people’s faith in impartial justice.
In practice, this is pretty unrealistic, and it became completely unworkable when the Republicans stopped objecting to judges for cause and just started opposing them all for no reason whatsoever.
People misunderstand the filibuster. It’s really just a rule for dealing with situations where unanimous consent cannot be achieved. We’ve gotten to the point where we can’t get unanimous consent from the Republicans for anything except maybe naming post offices.
A better way to urge moderation on the bench would be to change the rules so that a judicial nominee cannot get a vote on the Senate floor unless a majority of the Judiciary Committee approves them. Right now, a nominee can receive a confirmation vote even if the they have not been approved by the Judiciary Committee. The change would mean that a nominee would need the unanimous, or near-unanimous support of the president’s party in order to be confirmed. A nominee that was controversial enough, would be unable to get that level of support.
In any case, to reiterate, the filibuster is just a rule for dealing with a lack of unanimous consent. If the objection is budget-related, you can’t filibuster. If the objection relates to legislation or a Supreme Court nominee, you need 60 votes to overcome it. If the objection relates to a lower-level judicial nominee or an Executive Branch appointee, then it takes 50+1 votes to overcome it.
The number required in each case is somewhat arbitrary, although a simple-majority is the norm in all decision-making bodies. If there is a compelling reason to empower the minority, as with proposed amendments to the Constitution, then there still is a point at which that courtesy has been abused and the original wisdom of granting the concession succumbs to a different wisdom grounded in the need to get things done.
The only perfect solution would be for the legislature to resolve the country’s most contentious issues by amending the Constitution and putting them beyond the reach of either or the judiciary or the Congress. Until then, we’ll have both parties trying to legislate from the bench, and the Senate will continue its brawl over appointments. At least, now, with the changes in the rules, judges can be confirmed.
“The change would mean that a nominee would need the unanimous, or near-unanimous support of the president’s party in order to be confirmed. A nominee that was controversial enough, would be unable to get that level of support.” Not sure you have thought that one out. It is true for Dems, certainly. Just as evidently, it is not true any more for republicans, where the only controversial nomination would be one that is acceptable to Dems.
Not too long ago, Harriet Miers’s nomination was laughed out of town, by Republicans.
Okay, so that was as much about not knowing where she stood as about her having a thin resume, but still…
In any case, it’s not hard to imagine Susan Collins or Lisa Murkowski objecting to an extreme nominee, not is it impossible to picture a nominee so toxic in blue states that Sen. Kirk or Ayotte or Toomey or Portman or Ron Johnson would feel politically compelled to object.
This solution is undermined, however, by the fact that both parties keep moderates away from the Judiciary Committee. And when one nevertheless finds himself in charge there, as Arlen Specter did, they bring so much pressure on them that they can’t exercise much of a moderating influence.
Nothing is perfect.
Not too long ago, Harriet Miers’s nomination was laughed out of town, by Republicans.
Okay, so that was as much about not knowing where she stood as about her having a thin resume, but still …
And who did C- Augustus nominate instead? Roberts!! He was a radical Con and still got confirmed as Chief Justice! And Miers was laughed out of town by the GOP because she wasn’t sufficiently conservative. You never see that on the Democratic side. Just look at Kagan was one example.
Wrong.
Miers was replaced by Alito.
And she failed for a lot of reasons, being insufficiently conservative was only one of them.
Alito? That just proves Calvin’s point.
The fantasy about the progressive judges is in a way a red herring because of the deep tendency of progressives on the bench to be, well, judicious. Obama’s overall commitment to nonideological quality assures that if he gets his way there will be a perceptible progressive tendency. It’s just that like truth, justice has a bit of a liberal bias.
Thus we were hearing about how US District Court judge Shira Scheindlin was such a radical that she had to be thrown off the NYC stop-and-frisk suit, but when it came for the appeals court to look at her actual ruling there was nothing for them to object to. That’s because the “progressive” view was in fact the least biased one.
The Republican Party and the conservative front group Federalist Society aimed to take over the judiciary. In order to do that, they politicized appointments. Clement Haynsworth, Nixon’s nominee, wasn’t rejected because he was a conservative, he was rejected because of his opposition to desegregation even after de jure segregation was against the law. Other Nixon nominees were deemed to be mediocre and one in fact later ran afoul of the law. Even Robert Bork was deemed by the American Bar Association to be lacking judicial temperament; that is, he was hot-headed and opinionated. And Clarence Thomas who was rewarded with Supreme Court Justice for faithfully trying to gut the work of the Equal Employment Opportunity Commission at a point in which ending racial discrimination in employment was still a priority in Congress.
These were not ideological rejections. They were not arbitrary rejections.
But if the Republicans want to play the game of an ideological judiciary, let progressive Democrats stack the judiciary with judges and justices who understand the Constitution, have judicial temperament, are willing to check the other branches, and are rooted in progressive democratic principles. If there is to be legislating from the bench in fact, let’s make sure it is progressive. In truth, the Warren Court was not legislating from the bench.
“is that it created a bias toward nominating moderate judges. “
This notion is categorically refuted by reality, unless you’re prepared to assert that GW Bush never nominated any but the most middle-of-the-road candidates and Obama has nominated nothing but radicals.
No all it did was force Democratic presidents to timidly put forward right-of-center judges and let Republican presidents put forward people like Alito, Scalia and Roberts.
Judges are politicians in robes. Plus the idea that Scalia, Alito, Roberts, Rehnquist were/are less conservative than Own or Brown is just a matter of personal skill, style and pacing.
I am not especially concerned with upholding belief in impartial justice because that is a thing unknown to the American judiciary, and in fact, to most systems.
I’d settle for having justice whose dispensers are starting from principles that are legitimate, like fairness, and reduction of harm rather than principles which are largely negative, like purity, tradition, and deference to authority.
Seems to me that I remember about 20-30 years ago that the 2 senators in the state of the court would give the President a list of 3 judges, and the President would pick. This allowed the senators from which ever party to have a say in the matter, and they had a vested interest in getting the candidate through. This continual fighting over judges began under Reagan, when he scrapped that system.