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Why It’s Impossible to Keep Judge Nominations Non-Political

Ilya Shapiro

The year just past was a big one for judges. I don’t mean the
decisions they reached or the big cases argued at the Supreme
Court, but how our black-robed arbiters were picked and who they
are. Few would’ve predicted the record number of circuit court
confirmations (12) or total nominees (68), or their quality (a few
overly publicized weak spots notwithstanding). This presidential
administration has surpassed even George W. Bush’s well-oiled
machine for selecting committed and youthful originalists and
textualists, and getting them through the Senate.

A year ago, we were still getting over the surprise that the
next resident of the White House would be Donald J. Trump. It was
just sinking in that one of the new president’s first orders of
business would be to fill the late Justice Antonin Scalia’s seat.
Republican senators’ refusal to take up any nominee until after the
election, of course, preserved the vacancy.

People lost their minds over this maneuver, labeling it a
constitutional crisis, or a dereliction of duty, or the GOP’s
denial of President Obama’s legitimacy. It wasn’t any
of those things, but just good ol’-fashioned hardball
politics. Senate Majority Leader Mitch McConnell took a risky
gamble that paid off, in significant part because voters decided
that Trump’s list of Supreme Court potentials was better than
what they could expect from Hillary Clinton.

We have divergent
interpretive theories that map onto ideologically sorted parties,
so is it any surprise that elections are high-stakes for
judges?

So all the harping about Neil Gorsuch being an
“illegitimate” justice is sour grapes, tied into
general complaints about the election—such as that the
Russians prevented Clinton from campaigning in Wisconsin and wrote
her “basket of deplorables” speech—as much as
anything else. Trump recognized that this was a winning issue and
exploited it.

But What about the Lower Courts?

Lower-court judges, meanwhile, were real wildcards. If a
constitutional lawyer who had been editor-in-chief of the
Harvard Law Review deprioritized judicial
nominations—Obama made relatively few his first term, and
especially his first year—how much would a celebrity
real-estate developer care? Would Trump see these as patronage
posts for his casino lawyers and other JDs he encountered in the
entertainment world? Would he just focus on immigration and trade
and let the judiciary erode away?

As it turns out, the president took door number three: defer
entirely to his counsel, Don McGahn, a libertarian-minded political
lawyer who has been taking advice from the Federalist Society (of
which he and most of his team are members) and other conservative
legal elites.

The result has been the biggest success of Trump’s first
year, and judges of the same kind and caliber as those
conservative-constitutionalist presidential candidate Ted Cruz
would have come up with—and probably better than Jeb Bush or
Mitt Romney picks. This was made possible by former Senate Majority
Leader Harry Reid, who eliminated filibusters for lower-court (and
executive) nominees in 2013, a decade after he initiated partisan
judicial filibusters for the first time ever.

Now, when I point all this out, or detail the tit-for-tat escalations that have
brought us to the current level of political toxicity, I get
reminded that, back when it was almost certain that Clinton would
win the election, I counseled Republican senators to vote against
virtually all of her nominees. “Life comes at you
fast,” goes the Twitter meme. But I see nothing inconsistent
with arguing both that (1) Judiciary Committee Chairman Chuck
Grassley should discount blue-slip courtesies even more
than he has, and (2) he and his colleagues should vote against
nominees they think will do violence to constitutional
structure.

Different Parties Support Different Legal
Theories

It’s simply senators’ prerogative to vote against
nominees they think will be bad (though Democrats seem more concerned about bacon jokes and anti-Catholic bigotrythan jurisprudence and the
only damaging line of questioning thus far was
by Republican Sen. John Kennedy (LA)). But then it’s up to
voters to evaluate those judgments. It’s a shame that quality
nominees are confirmed only on party-line votes, but we’ve
gotten here not because either party acted unconstitutionally but
rather because we’re at the culmination of a long trend
whereby divergent interpretive theories map onto ideologically
sorted parties.

Judicial nominations are properly an election issue, so
it’s heartening that voters are paying attention. Federal
judges are a big deal: deciding many more cases than the Supreme
Court and nominated for life, thus carrying certain legal-policy
views long beyond the term of the president who appointed them.
It’s understandable that, given these stakes, senators try to
advance or block as many judges as possible.

Perhaps Schumer should’ve offered to confirm 40 district judges
(and no circuit judges) in exchange for not forcing cloture votes
and 30 hours of debate on every nominee. McConnell may have still
rejected that deal, because a dozen circuit judges may have greater
impact long-term, or because the Senate wasn’t using its floor time
for anything useful anyway. Then Schumer may have offered something
legislative—though he’s in a hard spot, with his base
demanding no compromise.

But that’s the way the game has to be played: a Senate minority
can still delay nominations—for now—without stopping
them altogether, but a Senate majority is the ultimate whip hand.
It’s not hard to understand, so maybe people are finally coming
around to the idea that, even and especially for judges, elections
have consequences.

Ilya Shapiro
is a senior contributor to The Federalist. He is a senior fellow in
Constitutional Studies at the Cato Institute and Editor-in-Chief of
the Cato Supreme Court Review.