It’s taking longer and longer–and getting harder and harder–to fill vacancies on the federal courts. Some new numbers tell part of the story: The average time for Senate action on judicial nominations rose from 38 days in 1977-78 (when both the presidency and the Senate majority were Democratic) to 144 days in 1987-88 (when a Republican President faced a Democratic Senate) and 201 days in 1997-98 (when a Democratic President faced a Republican Senate), according to a bipartisan group called Citizens for Independent Courts. The creeping partisan paralysis was illustrated on Sept. 21 by the strange spectacle of Senate Democrats filibustering one of President Clinton’s judicial nominees–Ted Stewart, a conservative Republican from Utah.
Senate Judiciary Committee Chairman Orrin G. Hatch, R-Utah, had forced Clinton to nominate Stewart by putting a virtual freeze on all other nominees for months. The filibuster was provoked by the efforts of Republican leaders to push Stewart ahead of long-languishing nominees favored by Democrats. Republicans have carried the partisan stalling of judicial confirmations to new lengths, approving only 17 nominees so far this year, while refusing to allow up-or-down votes on liberal Clinton nominees–such as Richard A. Paez, who has been waiting since January 1996. But Democrats also share the blame. In demonizing Robert H. Bork, Clarence Thomas, and other conservative Republican nominees, they triggered the downward spiral of partisanship and payback that have plagued the nomination process. No matter who is President, the next vacancy on the Supreme Court seems likely to provoke a partisan donnybrook. With the court split 5-to-4 on such major issues as racial preferences, states’ rights, and state aid to religious schools, neither Republicans nor Democrats in the Senate are likely to unilaterally disarm. Gone are the days when the Senate would confirm a Supreme Court Justice within hours of the nomination, as it did in 1922 with George Sutherland, or confirm a Chief Justice without asking the nominee any questions, as it did in 1953 with Earl Warren. Almost unimaginable is the unanimity that the court displayed in 1954–and for years thereafter in politically explosive decisions–when it struck down school segregation. Alarmed by the descent into rancorous partisan gridlock, Citizens for Independent Courts–co-chaired by prominent Democratic lawyer Lloyd N.
Cutler and former Rep. Mickey Edwards, R-Okla.–called upon Senators and Presidents alike on Sept. 22 to restrain their partisanship and expedite both nominations (which have been slower under President Clinton than ever before) and Senate action. The gridlock not only impedes the administration of justice in the courts but also deepens public cynicism about the ability of Congress and the President to work together. Why shouldn’t the public be cynical? Here’s what Senate Majority Leader Trent Lott, R-Miss., had to say in the face of pleas from respected figur…
It’s taking longer and longer–and getting harder and harder–to fill vacancies on the federal courts. Some new numbers tell part of the story: The average time for Senate action on judicial nominations rose from 38 days in 1977-78 (when both the presidency and the Senate majority were Democratic) to 144 days in 1987-88 (when a Republican President faced a Democratic Senate) and 201 days in 1997-98 (when a Democratic President faced a Republican Senate), according to a bipartisan group called Citizens for Independent Courts. The creeping partisan paralysis was illustrated on Sept. 21 by the strange spectacle of Senate Democrats filibustering one of President Clinton’s judicial nominees–Ted Stewart, a conservative Republican from Utah.
Senate Judiciary Committee Chairman Orrin G. Hatch, R-Utah, had forced Clinton to nominate Stewart by putting a virtual freeze on all other nominees for months. The filibuster was provoked by the efforts of Republican leaders to push Stewart ahead of long-languishing nominees favored by Democrats. Republicans have carried the partisan stalling of judicial confirmations to new lengths, approving only 17 nominees so far this year, while refusing to allow up-or-down votes on liberal Clinton nominees–such as Richard A. Paez, who has been waiting since January 1996. But Democrats also share the blame. In demonizing Robert H. Bork, Clarence Thomas, and other conservative Republican nominees, they triggered the downward spiral of partisanship and payback that have plagued the nomination process. No matter who is President, the next vacancy on the Supreme Court seems likely to provoke a partisan donnybrook. With the court split 5-to-4 on such major issues as racial preferences, states’ rights, and state aid to religious schools, neither Republicans nor Democrats in the Senate are likely to unilaterally disarm. Gone are the days when the Senate would confirm a Supreme Court Justice within hours of the nomination, as it did in 1922 with George Sutherland, or confirm a Chief Justice without asking the nominee any questions, as it did in 1953 with Earl Warren. Almost unimaginable is the unanimity that the court displayed in 1954–and for years thereafter in politically explosive decisions–when it struck down school segregation. Alarmed by the descent into rancorous partisan gridlock, Citizens for Independent Courts–co-chaired by prominent Democratic lawyer Lloyd N.
Cutler and former Rep. Mickey Edwards, R-Okla.–called upon Senators and Presidents alike on Sept. 22 to restrain their partisanship and expedite both nominations (which have been slower under President Clinton than ever before) and Senate action. The gridlock not only impedes the administration of justice in the courts but also deepens public cynicism about the ability of Congress and the President to work together. Why shouldn’t the public be cynical? Here’s what Senate Majority Leader Trent Lott, R-Miss., had to say in the face of pleas from respected figures, including Chief Justice William H. Rehnquist (in 1997), for more federal judges: "There are not a lot of people [in our states] saying: Give us more federal judges. …I am trying to move this thing along, but getting more federal judges is not what I came here to do." The efforts of Cutler, Edwards, and their colleagues may do some good. But until one party wins both the presidency and a filibuster-proof majority in the Senate, they are fighting an uphill battle. The reason is a fact of modern life that will not soon change: Senators not of the President’s political party know that it’s a good bet that his nominees will rule in ways that they deplore, in a wide range of politically charged cases. When court-watchers hear the vote count in a big Supreme Court or federal appeals court decision, they can often guess who was on which side. And in the appellate courts, too, the division is often along party lines, or close to it. (On the Supreme Court, two of the four more-liberal Justices–John Paul Stevens and David H. Souter–were named by Republican Presidents; conservatives vow not to let that happen again.) In March, for example, when the U.S. Court of Appeals for the 4th Circuit (based in Richmond, Va.) struck down the Violence Against Women Act as an unconstitutional invasion by Congress of the states’ domain, all seven judges in the majority were Republican appointees; all four dissenters were Democratic appointees. Such divisions reflect the increasing politicization of the law itself. As judges have extended their powers ever deeper into the realm of politics, any semblance of consensus on what were once called neutral principles of law has disintegrated. Can universities use racial preferences in admissions? Must they, to achieve racial balance? Can states require parental notification before minors have abortions? Can states fund tuition vouchers to help poor families choose religious or secular private schools? Can states that violate federal minimum-wage laws be sued for damages? Can the Boy Scouts of America bar avowed homosexuals from serving as scoutmasters? The answers to such questions depend less on the words of the Constitution than on the political and moral values of the people appointed to the federal bench, including those on the lower courts. And, increasingly, the answers depend on whether the President who picks them is a Democrat or a Republican. This has been true for a long time. But it seems to be getting truer. The legal opinions of many judges–especially strong liberals and conservatives–line up with striking regularity with the policy positions of the political parties from whence they came. Some liberal judges, who rhapsodize about the need to protect freedom of speech when the issue is government subsidies for sexually explicit art, embrace the use of "harassment" laws to punish speech offensive to racial minorities or women, and champion governmental discrimination against religious speech. And some conservative judges, who have preached "judicial restraint" and fidelity to the plain text and original meaning of the Constitution, increasingly compromise their principles in an absolutist zeal to strike down all racial preferences or to expand states’ rights. Meanwhile, more and more law professors–especially "critical race scholars" and some feminist scholars–argue that every decision is an essentially political projection of the judge’s racial, sexual, and economic perspective. Judicial legislation in the guise of constitutional interpretation used to be mainly a liberal thing. But conservatives–perhaps realizing that judicial restraint is not a winning strategy in an ideological war–have responded in kind. And as precedents that bend the meaning of the Constitution pile up, it becomes harder to tell the difference between constitutional interpretation and judicial legislation. However one apportions blame, the descent of legal reasoning into the vortex of political bickering is a fact of life. So it’s only natural that liberal groups pressure Clinton to nominate liberals, and conservatives pressure Senate Republicans to stop them, or at least stall them. It would be refreshing if more Senators were statesmen and put aside doubts about a nominee’s politics (except in extreme cases). Senators would fill judicial vacancies fast enough to facilitate speedy justice in cases that have little or no ideological content–the vast majority of them. But statesmanship is in short supply. The stalling of judicial appointments thus threatens to get worse, not better, as long as we have divided government. What is to be done? Confronted with a hostile Senate, any President who wants his or her judicial nominees confirmed will have to compromise. He or she will have to do what Clinton has done to a limited degree: find nominees without strong political or ideological views. This may, unfortunately, keep some of our best legal minds off the bench.
People who have thought long and hard about the biggest legal-political issues have often written or said things offensive either to liberals or to conservatives–sometimes both. But pressure for Presidents to shun ideological crusaders is not all bad.
Given the lack of consensus about where law leaves off and politics begin, we are better off with judges and Justices who are reluctant to impose their own political and moral values on the body politic, deferential to the primacy of elected officials in making broad legislative choices, sensitive to competing arguments, and suspicious of absolutes and extremes. In short, moderate centrists. That may seem boring to those who want judges to have grand dreams, and to do grand things. But we’ve had enough judicial grandiosity for a while. Your grand dream may be my nightmare, and vice versa. Not all moderates are muddled, and not all centrists are mediocre. The best are sensitive to the wisdom of Learned Hand, one of our greatest judges, who said in 1944: "The spirit of liberty is the spirit which is not too sure that it is right." Stuart Taylor Jr.
National Journal