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and White went through as a logolling deal, as White was originally nominated by President Clinton in 1997 (and withdrawn in January 2001). 32 Republican Senators voted against White, although I can't discern any obvious ideological or other voting pattern to those who voted "Nay."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.