“Tit-for-tat” has produced a downward spiral of increased politicization and obstruction of judicial nominations. Now that Senate Democrats have lost their super-majority in the Senate — and have learned that even a super-majority does not guarantee quick confirmation — perhaps there is an opportunity for Republicans and Democrats to reach an accommodation over judicial nominations.
The key stumbling block to any deal over judicial nominations is the underlying “tit-for-tat” dynamic. Just as Senate Democrats were reluctant to agree to any deescalation when a Republican was in the White House, Republicans are reluctant now. Neither side wants to accept a deal for which the opposition is the primary near-term beneficiary. I see two ways to deal with this problem. One possibility is to agree to a set of rules that will apply at some future date when there is some uncertainty about which party will be in control due to an intervening election. If each side is somewhat unsure about whether they or their opposition will benefit from a rule, it should be easier to agree upon a more neutral standard. As the next Presidential election is still more than two years away, such a deal might be premature, but it is the sort of thing I would hope some Senators would consider. Perhaps in early 2012 Senators could make such a deal to apply beginning in 2013.
A second possibility would be to adopt a more deferential rule today while compensating the opposition party for giving up the same obstructionist tools the other party previously enjoyed. So, for example, I would propose a deal whereby both parties would agree to apply a more deferential standard (and, ideally,forswear the use of filibusters), and,in return for agreeing to such a deal while there is a Democrat in the White House, President Obama would agree to re-nominate two of President Bush’s stalled nominees, such as Peter Keisler (DC), Loretta Preska (2nd), or Steve Mathews (4th). There is precedent for this sort of thing. President Bush renominated stalled Clinton nominees twice — Roger Gregory at the beginning of his term in a failed goodwill gesture (when he also elevated Clinton nominee Barrington Parker) and Helene White at the end of his term as part of a deal to move other nominees. Also, because there are still several appellate vacancies without pending nominees, including two on the D.C. Circuit, three on the Second, and one on the Fourth, this deal would not require the President withdraw any current nominees. Agreeing to such a deal now might also head off a fight over the next Supreme Court nominee.
I’m not naive, and I don’t expect any such deal to happen. But one can always hope.
Mark N. says:
It seems that there’s more problems than just the nomination fights, and forswearing filibusters might make some of the problems worse. If each side knew it could appoint anyone with a bare 51-vote majority, wouldn’t it encourage ever-more-partisan appointees?
January 22, 2010, 2:07 amGulf Coast Bandit says:
Mark N.: Maybe the “extraordinary circumstances” clause that was put into the last deal could address that issue. I would be more concerned about getting enough senators to agree to that rule, as it would be decided in one Congress but not take affect until the next.
January 22, 2010, 2:12 amtvk says:
I disagree with your diagnosis. The problem is not that neither side wants to give up the short term gain; but rather that any agreement is completely unenforceable. For example, there would be nothing to prevent the Republicans to foreswear use of filibusters, but after President Obama nominates the Republican candidates and they are confirmed, promptly reneging on the deal.
One factoid to support my position that it is not a myopia and focus-on-short-term problem: the Democrats have not raised the possibility of using the nuclear option to permanently disable filibusters. That would certainly be in their short term interest; but it is not in their long-term interest since Republicans have a built-in advantage in that Red states are smaller and more numerous than Blue states. (So your deal to eliminate filibusters also is in the long-term disadvantage of Democrats, if you entrench it via changes to Senate rules.)
January 22, 2010, 3:05 amAugoKnoke says:
I don’t think there is any real possibility to end the fight over judicial nominations. After all, the judges and justices are nominated for life. Thus, there is a certain logic in asking for a super majority in the nomination process.
January 22, 2010, 5:52 amI’d therefore go further, and ask the Senate to drop the relatively recently eased “formal” filibuster (1975)altogether in exchange for a constitutional amendment installing the super majority (only in judicial nominations!). That would revert the trend to ever increasing filibuster threats tremendously as it is awfully difficult to sustain a real, in person filibuster.
I think only for judicial life-time nominations there is a rationale for such a higher standard. For all other aspects of policies and politics the simple majority should suffice. The political process has been broken by the excessive use of an extra-constitutional gentle”person” agreement between senators. (Eliminate the “hold” too!)
The alternative would be to drop the nomination for life altogether, have an eight or twelve year term for judges after which they would have to be renominated or leave the bench. It would in all probability not really reduce the fights over nominations because with a reasonable term length for the judicial branch, Senators would almost always face the electoral wrath of their constituents if they don’t show enough “resilience” toward the opposite party.
Brett Bellmore says:
I would have thought that the key stumbling block was that the two sides had not just different, but contrary conceptions of judicial merit. The difference isn’t too salient at the lower levels, except to the extent lower courts are seen as the higher courts’ farm team, but by the time you reach the Supreme court, the set of judges acceptable to Republicans and the set acceptable to Democrats are practically disjoint.
January 22, 2010, 5:59 amK Dackson says:
Brett:
I agree, with the following clarification of what the contrary conceptions are:
Democrats believe the Constitution is a living document; Republicans believe judges should be able to actually read.
January 22, 2010, 7:39 amcboldt says:
On a procedural note (and lacking any substantive content), I’ve advocated that should the Senate decide to modify its procedure, the correct location for the change is Senate Rule XXXI, “Proceedings on Nominations.”
This would focus and limit the effect of a rule change. The GOP-proposed modification of Rule XXII (which is where the generic cloture widget is set out) results in a risk of confusion and possible loss of the power to object to limiting debate on other points.
Rule XXX (treaties) provides:
This doesn’t insure deference, only a vote.
January 22, 2010, 8:10 amWidmerpool says:
You want to end judicial-nomination spats? Overturn Marbury v. Madison (or cut waaaay back on federal jurisdiction and/or the federal government as a whole). As the federal government gets more important, the entity that has the final “say so” gets more important as well. As long as those conditions hold, it is naive (and I’m being charitable here) to suggest that politicians should try to “play nice.”
Once the government gets back down to being a mere 10 to 20 percent of GDP, then you’ll miraculously see less fighting over judicial nominations.
January 22, 2010, 8:55 amegd says:
So Republicans and Democrats should engage in a mutual gesture of goodwill, when it has already been demonstrated that Democrats are unwilling to respond to a gesture of goodwill from the Republicans.
I see this ending poorly for the Republicans, to be honest.
Maybe if the Democrats took some initiative in reducing the partisanship in the Senate, I would be willing to believe them.
January 22, 2010, 9:09 amdee nile says:
My side isn’t doing anything wrong.
The other side needs to A.) stop putting up hacks and 2.) support my side’s brilliant nominees.
January 22, 2010, 9:31 amruuffles says:
For crying outloud, there’s a perfectly easy fix.
Change the rules so that any lifetime appt requires a 2/3 majority vote. You want a hyper-partisan on the court? Sure, if you can get 2/3.
Further, to discourage stalling, require that a hearing be held within 60 days and a vote within 120 days. Otherwise, the nominee automatically gets a simple majority vote.
The problem with gentleman’s agreement and conditions like “extraordinary circumstances” is they are unenforceable. Make it a Senate rule (or a const amendment).
For the current nominees, all but Hamilton (and likely Goodwin Liu) would be confirmed.
January 22, 2010, 9:37 amSandy MacHoots says:
Calling it “tit-for-tat” belittles what is going on. Judges nowadays are extremely powerful politicians who make many of the nation’s most important political decisions. If they had term limits or could be recalled, the problem wouldn’t be serious. But as it is you’ve got only one chance to intervene.
Lawyers want to prate about stuff like “competence,” but the only important question for a prospective federal appellate judge is whether he or she will vote the way your side prefers.
January 22, 2010, 10:11 amCato The Elder says:
It’s not just that the Democrats have played “tit-for-tat” with the Republicans, it’s that they’ve escalated the judicial brinkmanship at every point they could. Compare Clinton’s Supreme Court nominees’ Senate tallies to Bush’s, for example, even after the word “Borking” entered the cultural lexicon. Certainly any sort of justice demands that the Democrats should be the first to unilaterally disarm.
January 22, 2010, 10:35 amruuffles says:
I don’t recall Democrats ever attempting to block one of Bush’s judges who had the backing of their Democratic home-state senator, as Judge Hamilton had the unwavering backing of Lugar, R-IN.
January 22, 2010, 10:58 amCharles says:
I’ve been thinking about something like this for a while, only in the broader context of ending the filibuster. Basically, the White House and Senate Democrats would agree to nominate and confirm all Bush nominees who failed to get an up-or-down vote when Republicans had a majority. In exchange, the Republicans in the Senate agree to eliminate the filibuster. The Democrats get to govern with a simple majority in the Senate, and the Republicans get what the filibuster denied them when they were in the majority.
January 22, 2010, 11:05 amAlanW says:
The real problem, as the comments here make clear, is that there’s more political hay to be made in screaming about judicial nominees than there is in fixing the problem. People get far more angry about blocking the other side’s nominees, or their side’s nominees being blocked than they do about making concessions to fix the problem.
I think a better solution would be introducing 10- or 20-year terms, but there’s certainly no constituency to push that, either.
All you people screaming “They started it” are like the Hatfields and the McCoys – unwilling to bury the past so you can build a better future.
January 22, 2010, 11:13 amOneEyedMan says:
Why not switch to a policy of nominating judges in groups rather than one at a time. Then when the Democrats are in control they could agree to nominate 4 left wing 4 moderate and 2 right wing judges at a time, When the Republicans are in control they could reverse it (2,4,,4) likewise giving everyone something to like and something to hate. Maybe that requires a rule change, but by bundling them you might be able to undo the log jam.
January 22, 2010, 11:19 amruuffles says:
Do you mean Democrats get to confirm judges with a simple majority, or actual legislation? Given that the Gang of 14 allowed a number of the blocked judges through, and only a few were never confirmed, I suspect a good number of those on the left wouldn’t mind letting Estrada, et al, on the bench in exchange for 51 votes to pass their wet dreams.
January 22, 2010, 11:24 amlgm says:
While there may be some fault on both sides, by far the greater fault is with Republicans. As a Republican yourself, you can apply your influence to changing their behavior. Speak out against the omni-filibuster in Federalist Society meetings. Then worry about Democrats.
The hard right political conservative justices Roberts and Alito were confirmed with overwhelming majorities while the center/left Sotomayor was almost filibustered. The Bush nominees who actually were filibustered — well — I challenge you to defend them.
I don’t think we have to acquiesce to your strictly legalalistic solution. Republicans have taken the position: “If it’s legal, it’s OK.” This made lying about WMDs in Iraq or the state of the social security trust fund OK, while Clinton’s denial of his affair with Lewinski was an impeachable offense.
January 22, 2010, 11:40 amArthurKirkland says:
Any sensible solution is likely to require statesmanship.
I am not optimistic.
Wheel in a couple of cots and invite — nay, dare — commencement of the filibusters.
January 22, 2010, 11:47 amRPT says:
The solution to this controversy is to allow R’s to appoint all judges from a poolo of Federalist Society members.
January 22, 2010, 11:54 amTHESMOPHORON says:
Republicans believe judges should be able to actually read
Really? How would Republicans feel about a nominee who said (quite correctly) that the text of the Equal Protection Clause requires employment nondiscrimination for gay federal workers and – to the extent Loving v. Virginia was correct – that it required gay marriage as well?
I don’t agree that living constitutionalism is a good idea, but don’t be so partisan as to believe that conservatives’ pick-and-choose textualism is any better.
January 22, 2010, 12:29 pmMark Field says:
Agreed. 18 year terms, with a new justice appointed every 2 years and an up or down vote within 90 days, would solve much of the problem.
January 22, 2010, 12:57 pmDave N. says:
Um, let’s be historically accurate here. Chief Justice Roberts was confirmed by a vote of 78-22; Justice Alito was confirmed by a vote of 58-42 (after surviving a party line vote in the Senate Judiciary Committee); and Justice Sotomayor was confirmed by a vote of 68-31.
I would also note that there WAS a cloture vote on Justice Alito, which means he ALMOST wasn’t filibustered — there was actually an attempt to do so.
(Justice Breyer was confirmed by a vote of 87-9 and Justice Ginsberg was confirmed by a vote of 96-3).
If you are going to make factual assertions, be accurate. Others shouldn’t have to do your research for you. The actual EVIDENCE (what a pesky thing for partisans) doesn’t support your conclusions.
January 22, 2010, 2:33 pmzuch says:
They already do that.
Cheers,
January 22, 2010, 2:47 pmJRinDC says:
Jonathan, there is another solution. The Democrats need to grow a spine, approve nominees in committee in a timely manner and put them on the floor for a vote. If the GOP wants to filibuster, let them stand there and read from the phone book until they are blue in the face.
January 22, 2010, 3:13 pmJudicial Fight Looming « Federal Way Conservative says:
[...] people are calling for some sort of reconciliation and peace treaty. Unfortunately, I don’t think that is [...]
January 22, 2010, 4:38 pmWC says:
“Tit-for-tat” makes me think of game theory and the prisoner’s dilemma game.
Click here for wikipedia’s discussion of this.
Until not that long ago (90′s?) the best strategy known was “tit-for-tat” which everyone thought was pretty nasty. There was a lot of interest when “co-operate, forgive once then tit-for-tat” proved to be superior.
Any chance we can get the Senate to understand game theory?
January 22, 2010, 9:26 pmJohn Herbison says:
When I see or hear the phrase, “tit for tat,” I invariably think of Dennis Miller’s line: “What is tat? Where can I get it? And how can I exchange it for the other?”
January 25, 2010, 5:01 amThe Volokh Conspiracy » Blog Archive » Whose to Blame for Nomination Bottleneck? says:
[...] and Barrington Parker. Perhaps if President Obama would follow Bush’s lead, it could lead to a deal to end political fights over appellate nominations. Categories: [...]
February 9, 2010, 10:52 amFriendyAnil says:
I just wanted to say thank you for existing. This site is amazing and it makes me happy to know it’s here. It makes me feel so much better that there are good jobs out there for people like me who care about making this earth a better place for our children. I can’t say thank you enough to you guys for all the hard work that you do. It means a lot. THANK YOU.Street Fights
March 2, 2010, 1:12 pm