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Judicial nominations and the filibuster, revisited

It has been a month shy of five years since I wrote a note called talk about the subject of the conversation, in which I detailed the circumstances where a minority legislative Party in this country could be expected to block a judicial nominee. I pointed out that in a situation where the President comes from the majority party, the minority may well want to block a nominee, and has the right to try. I said, “The question is when should a minority exercise that right, and the answer must have something to do with the nominees themselves.”

I still think that’s true. I thought, at the time, that the Democrats failed to make a case for the nominees themselves being so bad as to justify the block. They came off fairly well politically, I think, although of course they did allow some pretty bad judges and justices to be confirmed. But they have lost several confirmation battles (including yesterday’s withdrawal) and have another Supreme Court nomination (or maybe two) on their hands this summer.

It is true that the Republicans lost badly on Justice Sotomayor, and did so while (coincidentally, not causally) following my advice about making the nominee battle about the nominee. There were a lot of reasons for that, but primary among them was the obvious fact that Judge Sotomayor was a mainstream middle-of-the-road jurist, an impressive person generally, and the Party that wanted to block her nomination is far, far from the mainstream when it comes to what people want in a Justice. Alas, they are not far from the mainstream of the actual Court, but this is a court that is widely disrespected and disliked, so there’s that. The point is that by picking a nominee that the public would support, Our Only President took away the minority party’s option of blocking her.

Let me go into that a moment longer. The reason the Republican Party has been so unpopular is because of all their failures. That is true. It is also true, however, that the Republican Party is simply unpopular on policy grounds; a plurality of Americans support the Democratic policy positions on a large number of substantial issues, and the Republican policy positions on very few. The Democratic Party won the Presidency, of course, and the majority of the House seats, and sixty fucking Senators, which is a huge, huge number, and more than half of the Governor’s seats, in part because the Republican Party had been led by a secretive cabal of crooks and incompetents for a decade, and in large part because the Republican Party was simply offering no solutions that people wanted. Or, more accurately, the people who wanted the Republican Party’s offerings were outnumbered by the people who wanted those of the Democratic Party. And although the generic Representative ballot looks good for the other side now, the self-identification polls still look like they have for a long time.

Why is that important to this discussion? Because when we talk about the subject of the discussion, that is, when we talk about the nominees themselves, we will very likely be talking about a person who is right in the mainstream of America (from a political standpoint). It is possible, of course, that Our Only President will knock my socks off with some wildly lefty nomination (there are still lefties in the law schools, I’m told), but that seems unlike him and unlike our Party. When was the last time a Democratic President submitted a nominee that was to the left of the leftmost sitting Justice? Arguably LBJ in 1967, although you could argue that Justice Douglas or Justice Brennan were more liberal in their thinking than Justice Marshall, in which case the answer is FDR in 1939 or so. I’m thinking, here, about the reputation at the time of the nomination, not the eventual reputation of an Earl Warren; for our purposes, I’m just saying that it seems to me unlikely that Our Only President will nominate anyone much to the left of Ruth Bader Ginsberg or Stephen Breyer, notable pragmatists and cautious liberals.

What that means to me is that if the Republicans attempt to block the nomination(s) and to talk about the subject of the conversation while doing so, they will lose. This is not a Robert Bork situation, or a Charles Pickering. Or even a Samuel Alito situation, where the record was on the edge of the mainstream. And if you don’t have a legislative majority, and you don’t have popular support, while it’s still possible to block a nominee, it’s very, very unlikely and comes at a tremendous cost.

Which, I think, contains in it a lesson for any political Party. Which is (a) do not allow yourself to be led by a secretive cabal of crooks and incompetents, and (2) either keep your Party platform within hailing distance of the public, or move the public within hailing distance of your platform. It ain’t all about the base.

Tolerabimus quod tolerare debemus,

Added: I wrote this on Saturday and evidently failed to post it. In the meantime, a couple of things have come up: Jon Bernstein wrote a note called Wanna Fight, in which he details an analysis in favor of the kind of nominee I predict OUP will choose. Left Blogovia has, in general, seems to have lined up to support a truly liberal nominee (although I haven’t seen many actual names). I want to make a couple of distinctions, as long as I’m writing about the general topic. There’s a difference between advocating for a liberal Justice and promoting an analysis of the politics of nominating such a person. I think (along with Mr. Bernstein) that such a nomination is unlikely, and could quite likely not pass the Senate under current circumstances. I don’t know if nominating a liberal and not getting that nomination through the Senate would be bad for Our Only President’s policy aspirations; I don’t know if the Robert Bork situation turned out badly in the end. But it’s certainly possible that the Republicans in the Senate will successfully block a nomination.

But, again, there’s nothing wrong with Left Blogovia saying that they want a liberal Justice, and that they will be disappointed with a moderate. We should do so. There’s no downside to advocating; if we actually get a liberal, it’s good for our country (as we perceive these things, being liberals ourselves), while if (as I predict) we get a moderate, we have helped the political framing and whatnottage.

But my point up there is that it’s an advantage to any Party to be able to talk about the subject of the conversation, that is, the nominee herself and the policies and philosophy of the Party as they affect the actual government of the nation. Since we can do that, I would rather see Left Blogovia concentrate on advocacy than analysis.


I know that there are many calls for Obama to nominate a liberal jurist, and I would like to see that, but, not being an expert on The Law, I am a) not sure in principle what the differences between a moderate jurist and a liberal jurist are, and 2) not sure in practice what the difference of having a liberal vs. a moderate on the Court would be, given that the Supreme Court will continue to have a conservative majority (built on a rock-solid block of crazy/corrupt corporatist reactionaries, all of whom are a disgrace to their institution--just thought I should make my political stance clear here). To elaborate on the second point: in practice, it seems to me that it would be good to have a jurist who will disagree with Alito, Roberts, Scalia, and Thomas on all matters of substance, and who can be instrumental in convincing Kennedy that he should, too, as often as possible. It doesn't seem to me that a liberal jurist is needed to accomplish those ends, as the Four Jurists of the Apocalypse are so extreme that they have little common ground with anyone who is not a Movement Conservative.

Perhaps it is the case that, in the longer view, a liberal jurist who is consistently in the position of dissenting could lay important foundations for a future liberal Court by writing eloquent and brilliant dissents showcasing all the virtues of liberal jurisprudence in case after case in which the Court majority actually issues reactionary or corporatist rulings. But in terms of how the current Court's decisions will turn out, it's not clear to me what a liberal jurist would bring to the Court that a moderate wouldn't. Is there an Overton window for the Supreme Court?

Chris, that's an excellent point. I would say that there probably isn't an Overton window as such, although since Democratic presidents do seem to want to nominate people who would not be the furthest left on the court, a real lefty would create some room for future moderates to be further left.

On the other hand, I'm not altogether sure that when it comes to constitutional interpretation, the spectrum is smooth, as opposed to being stepped. That is, if we say that a moderate liberal will be more likely to be sympathetic to defendants in criminal cases and plaintiffs in civil cases (not necessarily ultimately voting that way, but beginning the case with some sympathy on that side) and more likely to be sympathetic to granting standing and recourse to the courts widely when possible, that's going to be a whole lot of people. The next step, it seems to me, is the admission that the court's decisions affect real people, and that the effect on real people should be taken into account during the case. After that, it seems to me you have to go a long way before you can identify what makes a potential nominee more liberal than that—outright rejection of the Founders' thoughts as relevant to today's problems? Some statement that individual rights sometimes have to give way to communitarian values, but not to business interests?

The problem is that I don't know enough about the theories of constitutional law to do any sort of reasonable analysis that would differentiate between a mildly liberal judge and some sort of radical. But then, it seems to me that Justice Stevens, while (eventually) a reliable vote for the liberals, was not some sort of wild-eyed lefty, just a, well, a reliable vote against crazy and corrupt corporatist reactionaries. I would certainly be happy with that.


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