The Escalating War Over Judicial Appointments


By Joe Campbell
October 29th, 2009

I recall the Wall Street Journal editorial page making a big deal about the “unprecedented” blocking of appointees to the Judiciary while George W. Bush was in power. The editors considered it a travesty that the a minority would take such “unprecedented” and “anti-constitutional” steps to preserve their “last toehold on power” using “not-so-democratic tactics” (the filibuster) to “block, delay and besmirch” Bush’s judicial nominees in an “assault on democracy” whose purpose was “judicial Armageddon.” (I’ve excerpted some examples below the fold.)

Clearly, the Wall Street Journal opposes “judicial filibusters” (though it wrongly credits the Democratic Party for inventing them.) So you would think that they would make a point – just to appear consistent – of calling on the Republicans to stop the practice of judicial filibustering. (There was one guest editorial to this effect since Obama’s election that my research has found.) Instead, most readers of the editorial page would have no idea that Republicans have in fact escalated the judicial war that has been going on since the 1980s. As Doug Kendall writes in Slate:

Over the past several decades, senators in both parties have used an escalating set of procedural tactics to block confirmations, particularly near the end of an out-going president’s term in office. To date, however, the tit-for-tat game has played out within a fairly narrow category of nominees who are deemed controversial. [my emphasis]

Now, Kendall points out, the Republicans are slowing down all judicial appointments rather than just the handful of controversial ones.

Kendall compares how Bush nominees fared at the end of Bush’s term with the Congress controlled by Democrats:

In the last two years of Bush’s term with a Democrat-controlled Congress, 26 of 68 nominees were confirmed less than three months after the president nominated them, with 100 confirmations total during that time.
In the first nine months of Obama’s term with an even more Democrat-controlled Congress, 0 of 22 nominees were confirmed less than three months after the president nominated them, with 3 confirmations total during that time.

Kendall points out that Obama’s nominees have all been uncontroversial so far – supported by their home state senators, even when they are conservative Republicans. (The support of your home state senator is an important measure used for judging nominees.) And that they have been blocked even when passing the Judiciary Committee with bipartisan support:

Two additional nominees, Andre Davis of Maryland and David Hamilton of Indiana, cleared the Senate judiciary committee way back on June 4—144 days ago. Yet their floor votes are still pending.

Davis and Hamilton have spent longer in this particular form of limbo than any Bush nominee confirmed from 2007-08. Yet Davis cleared the judiciary committee by a bipartisan vote of 16-3 and can’t remotely be considered controversial. Hamilton has the strong support of his home state Republican senator, Richard Lugar. Beverly Martin, an appeals court nominee supported by Georgia’s two conservative Republican senators, was unanimously reported out of the Senate judiciary committee by a voice vote more than 46 days ago. She, too, has not received a Senate floor vote. Five other Obama nominees, all well-qualified and without any serious opposition, similarly await floor action.

I personally would not begrudge the Republicans the ability to filibuster and try to block nominees whose views they deemed controversial. I would oppose any justice who believed the president possessed the powers of a monarch in times of war (as Justices Alito and Roberts seem to) and I can see grounds for opposing some leftist nominees as well. But to hold up the entire judicial appointment process is a clear abuse. I await the Wall Street Journal‘s imminent essay on the “judicial Armageddon” that these “anti-democratic” and “anti-constitutional” actions by the Republican Party they sympathize with will clearly lead to. Especially as the Republicans in Congress have pushed the filibuster to historically unprecedented levels.

From the Wall Street Journal:

September 22, 2003:

Today the Democrats’ last toehold on political power is the ability to muster 40 votes to sustain a filibuster in the Senate–a not-so-democratic tactic it is using in unprecedented ways to sustain the judicial imperialism on display with the Democratic appointees on the Ninth Circuit.

October 13, 2004:

Since the beginning of George W. Bush’s tenure in the White House, liberals have waged an unprecedented campaign to block, delay and besmirch his judicial nominees.

November 8, 2003:

Everyone has commented on the unprecedented filibuster campaign against President Bush’s appellate court nominees…

November 15, 2004:

Speaking of Democrats’ unprecedented filibuster of 10 appeals-court nominees, Sen. Frist announced his intention to go “nuclear” if they try the same tactic again.

January 20, 2005:

The Democratic filibuster of Mr. Bush’s appellate-court nominees is both unprecedented (see the 2002 Congressional Research Service report by Richard Beth) and anti-constitutional because it denies them an up-or-down “advice and consent” Senate vote.

January 24, 2005:

Perhaps the biggest failure of Mr. Frist’s leadership in the last Congress was his inability to corral Republicans and stop the Democrats’ unprecedented filibuster of 10 of President Bush’s appeals-court nominees.

April 17, 2005:

The left’s “judicial Armageddon” is an assault on democracy…To demand that a sitting president appoint a previous president’s nominees would be an unprecedented surrender of his constitutional authority.

January 13, 2006:

In response the minority Democrats largely abandoned Borking in favor of hostage-taking, thus delivering yet another innovation to our politics, the judicial filibuster.

January 26, 2006:

The battle over their unprecedented filibuster of 10 appeals-court nominees helped to sweep Democrats out of the Senate in Bush-leaning states and give Republicans a larger majority.

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