Judicial Nominations and Competing Constitutional “Mainstreams”

In a recent column, Harvard Law Professor Cass Sunstein argues that Republican senators who have filibustered some of Barack Obama’s judicial nominees are more to blame than Democrats who previously filibustered GOP nominees because the Democrats only tried to block nominees who were “out of the mainstream,” while the GOP targeted any nominees whom they “strongly disagree” with on constitutional issues. Sunstein does recognize that “Senate Democrats deserve a fair share of the blame for this dismal situation” because “their use of the out-of-the-mainstream test sometimes veered disturbingly close to the disagreement test.” But he claims that the GOP has gone further than the Democrats did.

Sunstein’s critique is overdrawn. If the Republicans really tried to filibuster any Obama nominees with whom they have strong disagreements, they would have filibustered virtually all of them, not just a few. In reality, they have targeted nominees who they thought were even more liberal than the average nominees put up by a Democratic administration and/or had a “paper trail” that made them unusually vulnerable to attack. Democrats pursued a similar strategy during recent Republican administrations.

Most of the nominees that Democrats aggressively opposed during the Reagan, Bush I, and Bush II administrations were well within the mainstream of modern conservative constitutional thought. That was certainly true of high-profile cases such as Miguel Estrada and Peter Keisler. Similarly, most of the Democratic nominees targeted by Republicans under Clinton or Obama were well within the mainstream of modern liberal constitutional theory.

The underlying reality here is that there is a deep chasm between mainstream conservative views on constitutional interpretation and mainstream liberal ones. The standard-issue conservative Republican jurist believes that the Constitution provides extensive protection for gun rights and property rights, that the courts should enforce significant federalism-based constraints on Congress’ powers, that all or most affirmative action programs violate the Fourteenth Amendment, that Roe v. Wade should be overruled, and that there is no general right to privacy in the Constitution. The standard-issue liberal Democratic jurist thinks that all of the above is wrong. Each side believes that the other side is not only wrong about some particular issues, but has a fundamentally defective approach to constitutional interpretation and the role of judicial review. Much of what the conservative mainstream believes about constitutional law is completely anathema to the liberal mainstream, and vice versa.

Yet both sets of views are clearly within the “mainstream” of their respective parties. And both also enjoy substantial public support. I won’t run through all the relevant survey data here. But both liberal and conservative positions on most of the above constitutional issues have considerable appeal (usually at least 30-40 percent of the public). Neither is confined to a small clique of “extremists.”

Given the deep divide between the conservative mainstream and the liberal one, it is no surprise that the two sides have gradually escalated their efforts to impede the other’s judicial nominees over the last thirty years. If you think that the other party’s nominees are not just suboptimal but threats to fundamental constitutional principles, you are likely to seize on any possible tools that could be used to block them.

Once we recognize that the issue here is not a conflict between “extremists” and “the mainstream,” but one between two mainstream views that are very far apart, there are three reasonable responses to the situations. One is co-blogger Jonathan Adler’s view that both sides should abjure the use of the filibuster and other delaying tactics, and perhaps also stop opposing technically qualified nominees on the basis of their judicial philosophy. Another (closer to my view) is that both sides are equally entitled to consider nominees’ views and to use any blocking tactics permitted by the rules of the Senate. The Senate can, of course, change its rules. But until they do so, it is not wrong for either side to exploit them for the purpose of opposing judicial nominees who they believe are likely to make badly misguided decisions should they get on the bench.

Finally, partisans on each side can argue that their side is justified in using aggressive tactics and the other is not because the former is right about the constitutional issues in dispute, while the latter is wrong. Just as just wars have a different moral status from unjust ones, so the use of the filibuster against nominees who are badly wrong about key constitutional issues is more legitimate than its use against those who are right.

But there is a big difference between distinguishing between nominees with right and wrong views and distinguishing between those who are inside and outside of the mainstream. A mainstream view of the Constitution can be badly wrong. Indeed, if mainstream liberals are right about constitutional interpretation, that implies that the mainstream conservative view is badly wrong, and vice versa. Similarly, an extremist view can be correct. Between, say, 1890 and 1930, the view that the Constitution bans racial segregation in public education was clearly an “extreme” one. Ditto for the view that the Constitution imposes tight constraints on sex discrimination by state governments (considered extreme for much of American history), and quite a few other cases.

There are serious arguments for each of these three approaches. But none of them can rest on the assumption that either the Democrats or the Republicans are targeting only “out of the mainstream” nominees.

Ultimately, we should spend less time talking about whether nominees’ views are “out of the mainstream” and more time focusing on whether they are correct. For the most part, presidents of both parties are likely to nominate judges who are within the mainstream of their side of the political spectrum, and that mainstream is also likely to enjoy considerable public support (even if not always a majority). But when one side’s mainstream is deeply at odds with the other’s, that suggests that one or both are also badly misguided.

UPDATE: I have changed the title to better reflect the argument of the post.