The Democrats did. And it doesn’t matter: they were right to do so. Here’s why.
The GOP filibuster of Goodwin Liu (who has since withdrawn his candidacy) has led to all sort of recriminations. “You violated the “Gang of 14″ agreement!” “Oh yeah? You filibustered Miguel Estrada.” And on and on. Dahlia Lithwick suggests that it’s pointless to even figure this out. I disagree.
Using advanced research techniques unavailable to full-time reporters, I went to the library and consulted The Federal Appointments Process by Professor Michael J. Gerhardt of the University of North Carolina Law School. Gerhardt’s book is something of the standard work in the field. He explains that when it comes to blocking Presidential appointments of circuit and district court judges, the key event was the Republican takeover of Congress in 1995. As I mentioned a few days ago, this was a typical Gingrichist move: break the informal institutions of American governance. Obviously, it wasn’t Gingrich himself: he was in the House. But the “Republican Revolution” dragged Senators along with it, especially because so many of them had been member of the minority GOP House caucus. Thus, as Gerhardt observes:
President Clinton’s federal district and appellate court nominees confronted historic delays. For instance, 1999 was a historic year for the Clinton presidency not only because of the president’s acquittal in his impeachment trial but also because by mid-year the Clinton Administration had only two judges confirmed — the lowest number ever confirmed midway through a nonelection year. Moreover, the statistics for some other years are striking. For instance, the percentage of President Clinton’s judicial nominations confirmed in 1997 — 47 percent — is significantly lower than the percentage of judicial confirmations for any president (except for Clinton’s own record the previous year) over the past four decades. In 1998, the percentage of judicial nominees confirmed climbed well back into the respectable range at 79.5 percent. Though 101 judges were confirmed in 1998, the numbers of confirmed judicial nominees in 1997 and 1999 were each lower than the number of President Reagan’s judicial nominees confirmed in 1998 (41) and the number of President Bush’s judicial nominees confirmed in 1992 (66), both of which were election years. (167-8).
This pattern followed the Republicans’ changing of the “Blue Slip” rules in 1995, in order to make it much easier to block Clinton judicial nominations. (They then changed the rules back in 2001 when Bush became President). Kevin Drum explained this in a classic 2003 post. Remember — this behavior represented a complete change from the traditional informal understandings about what happens when the President is of a different party than the Senate majority. Democrats came nowhere close to doing this when they were in the same position with Nixon, Reagan, or Bush I.
Was all this because of intransigence on Clinton’s part? Not at all. After 1994, explains Gerhardt, with
a Republican majority in the Senate, the Clinton Administration became more seriously committed to avoiding controversial judicial appointments and preserving precious political coinage for other important legislative initiatives. The Clinton Administration consulted widely on appointments with people outside the administration, including senators, representatives, state and party officials, and civil rights leaders and other interest group leaders. By frequently floating various names before the media or the Senate in the hope of determining which had the likeliest change to win confirmation or make the largest number of people happy, the Clinton Administration effectively transformed consultation into a preview of or substitute for the confirmation process. (122).
Essentially, the Clinton Administration was practically begging the GOP to take someone — anyone — for the federal bench. And the Republicans turned it down, thinking that they would run out the clock and hope to get unified control in 2000 (which it did thanks to the Supreme Court).
So if you are the Democratic caucus in 2001, this is what you see: 1) the Republicans completely changed the rules from 1995-2000; 2) this left dozens of vacancies that would not have been there had the old rules applied; and 3) are now in a position to fill them from a President who is in the White House only because of a Supreme Court coup. Anyone who wouldn’t filibuster in those circumstances is a sucker. Yes — the Democrats were the ones who started the greater use of judicial filibusters. And that was completely reasonable given the situation that they were in.
But there is one crucial caveat to all of this. Why did the Republicans change the rules so drastically in 1995? Was it petty partisanship? Not at all. It was grand partisanship. From its very inception, Movement Conservatism aimed to transform the federal judiciary. It was an article of faith that the Warren Court had perverted the US Constitution. This is why the Federalist Society became so influential so quickly. It was why Reagan nominated Robert Bork, who had expressed skepticism about Brown v. Board of Education. And it was why the Democrats blocked Bork, to their everlasting credit, saving the country from a genuine reactionary.
We can see this even today. Consider Justice Scalia’s
hissy fit dissent in Brown v. Plata, the case decided this week concerning the appalling conditions in California’s prisons. Much of it is devoted to arguing that the remedy in this case — the so-called “structural injunction” — is illegitimate and probably unconstitutional. Structural injunctions are essentially a series of ongoing orders to public institutions to change their practices. They are far-reaching, difficult, complex, and sometimes counterproductive. And they are often necessary. If courts really got rid of structural injunctions, then both Brown v. Board of Education (“Brown II”, concerning the remedy) and Reynolds v. Sims (the “one-man, one’vote” decision) would never have occurred. And that is what Movement Conservatism wants. The Court’s conservatives are still trying to get rid of desegregation remedies.
The Republican judicial campaign in the 1990’s and today is essentially designed to take the courts back before the 1950’s. That is its program. When the Democrats saw this, they filibustered. I believe that they were right to do so then, and they are right to complain about it now. But you cannot divorce substance from procedure. Do you believe that the federal courts should attempt to force other institutions to protect civil rights? Democrats say yes, Republicans say no (with the important and not irrelevant exceptions of guns and private property rights). That’s the argument. It’s a real argument. But that is the ground on which it should be waged.