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Logrolling Judicial Appointments:

I see from the news story Orin linked on the new Michigan 6th Circuit Judges that in the end Kethledge and White went through as a logolling deal, as White was originally nominated by President Clinton in 1997 (and withdrawn in January 2001). 32 Republican Senators voted against White, although I can't discern any obvious ideological or other voting pattern to those who voted "Nay."

This sort of bipartisan logrolling over "paired" appointments seems to be common when it comes to appointments to many federal agencies. It has happened for judicial appointments as well in the past, but my sense is that it has been relatively uncommon. I wonder to what extent this will become a working model for judicial appointments during periods of divided government between the President and the Senate, and perhaps even if a minority party filibusters appointments.

The problem, it seems to me, is that there are really only two stable equilibria when it comes to judicial appointments for an opposition party in the Senate, either a presumption of approval or a presumption of opposition. Right now it appears that we have pretty much reached the endpoint of movement from a strategy of cooperation to a strategy of noncooperation, especially with the establishment of a new norm that a minority can block appointments through use of a filibuster. Nor do I see how this development can reverse itself as a political matter to move back toward a cooperative equilibrium. Assuming an Obama Presidency and a Republican minority in the Senate, Republicans may decide to unilaterally disarm on the filibuster issue in the near future. It is hard to see how the Republican base would allow them to get away with this. But even if they do, it is hard to see how that could establish a new long-term cooperative equilibrium when a Republican someday recaptures the White House.

What does seem to be an intolerable and unsupportable situation is the chronic number of open seats on Courts of Appeals. I also wonder how much longer good people are going to be willing to put their names forward to be nominated for judgeships in light of the increasingly awful and outrageous nature of the confirmation process that has developed over time. We talk a lot about the impact of judicial salaries on the willingness of good people to take judgeships, but it seems to me that the unsavory and unpredictable nature of the confirmation process has to be a deterrent as well. Nominees often have to put their lives on hold for years while their reputations are besmirched for political gain.

Put together, this leads me to wonder whether we inevitably will be led to a norm of partisan logrolling of judicial appointments, especially for Courts of Appeals judges. I don't see it happening for Supreme Court appointments, which are too rare and precious. And District Court appointments don't seem to have necessarily devolved into a norm of noncooperation (at least not yet).

As a purely political matter, I thus don't see any alternative to logrolling as a stable equilibrium solution to the confirmation mess. For what it si worth, it was precisely to avoid this situation that Hamilton argued in Federalist 76 for vesting the power of nominations in the single person of the President rather than in a legislative body:

Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.

As I read the Federalist, it seems clear to me that at least as far as they were concerned the primary purpose of the "Advise and Consent" role of the Senate was to ensure that the President was nominating qualified people to the bench and not mere cronies. The particular concern was to ensure the independence of the judiciary so that it was not subservient to either the President or the Congress. In my view, this leads to a relatively narrow scope for the Senate's inquiry of a nominee into questions of experience, qualifications, and integrity to uphold the independence of the judiciary as a co-equal branch of government. That also seems to me to be a preferable model of the Senate's role in judicial confirmations than the current situation. I acknowledge, however, that horse is not only out of the barn but almost even out of the pasture at this point. Is hard to see how the confirmation process could ever be brought back to some semblance of functionality.

Regardless of the wisdom of logrolling as a solution to the current problem, however, it seems to me that this is where we are headed, probably permanently.

Curt Fischer:
What if the Senate Republicans had made good on their threat a few years ago to abolish the requirement of supermajority votes for attaining cloture? As a policy matter, I don't understand why cloture is so weighty an act that a mere majority vote of Senators isn't good enough.

If simple majorities were sufficient for cloture, how would it affect the dynamics of judicial confirmation? Would it eliminate the simple two-state equilibrium that Prof. Zywicki talks about?
6.26.2008 8:15am
cboldt (mail):
Very thought provoking, and I think accurate article as to history, the proper function of the process, and the bastardization of it by a political party/movement that is not ashamed of subverting the Constitution.
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I blame the Democrats for the abuse of cloture in the nomination venue, effectively letting the minority control the process. Likewise, for the politicization of the judicial branch.
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What's that Chinese proverb, "Careful what you wish for, you might get it?" Well, they wished for it, fought for it, and now they have it.
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Franklin, "A republic ma'am, if you can keep it."
6.26.2008 8:44am
cboldt (mail):
-- What if the Senate Republicans had made good on their threat a few years ago to abolish the requirement of supermajority votes for attaining cloture? --

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FWIW, the proposed language was narrowly crafted, to apply only to District and Circuit Court nominations.

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I advocate leaving the Cloture Rule (XXII) alone, and modification of the Nominations Rule (XXXI) so that it resembled the treaties rule (XXX). Supermajority vote on cloture does not operate under the Treaties Rule.

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On the final question to advise and consent to the ratification in the form agreed to, the concurrence of twothirds of the Senators present shall be necessary to determine it in the affirmative; but all other motions [including cloture] and questions upon a treaty shall be decided by a majority vote, except a motion to postpone indefinitely, which shall be decided by a vote of twothirds.
6.26.2008 9:37am
RIch B. (mail):
During the Clinton years, with a Republican majority, there was a pretty explicit understanding that in Pennsylvania, for example, for every three appointments one of them would be taken from a short list approved by Arlen Specter.

This informal policy increased the willingness of Republicans to allow the liberal nominees through (except, for example, with Judge Massiah-Jackson, who was no more liberal than lots of other nominees, but was more outspoken).

The Bush Administration isn't as open to compromise with states with Democratic Senators. Maybe that's bad and maybe that's good, but it is entirely predictable that it will lead to fewer confirmations than under Clinton.
6.26.2008 10:03am
Dave N (mail):
The Ninth Circuit is different and I suspect the reason is cooperation between the Administration and Senator Feinstein (though that is just a guess). There is currently only one vacancy in the 9th (a "California" seat held by Judge Trott) and while I suspect it will not be filled this year, that is a track record of confirmations significantly different than in other circuits.
6.26.2008 10:11am
Jeremiah:
The way to solve the problem is to materially reduce the power the judiciary exercises vis-a-vis Congress and the states. The escalation and ugliness of the confirmation battles are an entirely logical response to the enormity of the stakes. Reduce the stakes, move the locus of law and policy-making power back towards the elected branches, and there won't be cause for all the hullabaloo. I'm not advocating full blown British-model parliamentary supremacy, but there is a long way to go between here and there.
6.26.2008 11:30am
byomtov (mail):
it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.

Even if we accept hamilton's point here, it hardly constitutse an argument for giving the President unrestricted power to appoint judges. I think that it would "rarely happen that the advancement of the public service will be the primary object" of the President.

Politicians pick judges, so politics plays a part. That seems unavoidable.
6.26.2008 11:54am
Cornellian (mail):
Reduce the stakes, move the locus of law and policy-making power back towards the elected branches, and there won't be cause for all the hullabaloo.

So the courts should have left it up to the elected government of D.C. to decide whether their gun ban was constitutional?
6.29.2008 5:51am