Miguel A. Estrada is an attorney in Washington, D.C. Benjamin Wittes, a former Post editorial writer, is a senior fellow in governance studies at the Brookings Institution and editor in chief of Lawfare.
Here’s a simple piece of advice for anyone confused by the partisan politics of replacing Justice Antonin Scalia: Assume that anyone who claims to be acting out of a pristine sense of civic principle is being dishonest.
We have both argued for a world in which judicial nominees receive prompt hearings and up-and-down votes based solely on their objective qualifications — education, experience and temperament. But that has not been our world for at least two decades. The savvy citizen should recognize as much and heavily discount anyone who speaks in the language of principle about the rules or norms that do or should govern the treatment of either a judicial nominee or the president who sends that nominee to the Senate. As recent history demonstrates, the only rule that governs the confirmation process is the law of the jungle: There are no rules. There is no point in pretending otherwise, as much as many of us wish it were not so.
We have come by this view with extreme reluctance. One of us was a judicial nominee who never got a vote from the Senate but who nonetheless publicly encouraged the Senate to support President Obama’s appointees, including an overwhelmingly qualified Supreme Court nominee of the opposite party. The other wrote editorials for The Post for many years decrying unreasonable Senate treatment of nominees of the Bill Clinton and George W. Bush administration alike and also wrote a book arguing for a restoration of norms of expeditious and fair consideration of nominees. Both of us believe that when presidents nominate qualified nominees, the Senate should confirm them, and that courts should be fully staffed at all times to dispense justice to the litigants who come before them.
Rarely has either of us lost an argument more completely at the hands of the entire political culture than we have lost this one.
Republicans and Democrats put the blame on the other for the complete abandonment of rules and norms in the judicial confirmation process. Both are being insincere — whitewashing their conduct over a long period of time while complaining bitterly about the very same conduct on the part of the other side. Both have chosen, in increments of one-upmanship, to replace a common law of judicial nominations that was based on certain norms with one based on power politics alone.
Today, there is no principle and no norm in the judicial nominations process that either side would not violate itself and simultaneously demand the other side observe as a matter of decency and inter-branch comity.
This truth has consequences. In the judicial nominations process for which we argued, there were several good reasons for Republican senators to move a nominee advanced by Obama late in his tenure. One was that the Senate owed an institutional duty to the executive branch to consider presumptively qualified nominees in a fair process. Another was the knowledge that some day, the shoe would be on the other foot. A Senate of the opposite party would confront a late nominee of a president of the opposite party. We all seemed to agree that we would rather live in a world in which both nominees got considered than in a world in which neither got considered. In that world, comity, fairness and long-term self-interest of both parties all pushed towards a relatively predictable, relatively humane (to the nominee), relatively deferential (to the president) process.
In a world in which those norms do not have force, there is no reason in principle to demand that Republicans move a late-stage nominee from Obama.
Certainly, the Constitution doesn’t require it of them. All the Constitution gives the president is the power to nominate whomever he wishes for a judicial vacancy. The Constitution expressly provides that the power to appoint may be exercised only with the affirmative concurrence of the Senate. If the Senate does not act at all — for a good reason, for a bad reason, or for no reason at all — that is the constitutional equivalent of the Senate’s rejection of the nominee. The Constitution doesn’t require the Senate to engage in any process at all beyond sitting on its collective hands. All of those expectations were merely a matter of the norms the political parties have so cheerfully torn down.
If the president or a senator of either party tells you differently, ask him or her how is it that both parties have systematically blocked judicial nominees of the other party — using the filibuster and other parliamentary tricks — for the past two decades. The whole purpose of these maneuvers is to prevent the Senate from giving an up-or-down vote to qualified nominees in the expectation that the nominee will eventually go away and the Senate will not have to vote on the merits of his or her nomination. As a senator, Obama filibustered nominees. So did then-Senator Hillary Clinton. And, of course, the Republican caucus also filibustered Obama’s nominees early and often. Even before the filibuster had been normalized, both parties — when in the majority — refused to schedule hearings on the candidates nominated by presidents of the other party or did so only with lengthy delays. Each of those instances involved, in the current parlance, the Senate “not doing its job” and leaving judicial vacancies open for years. If all of that was unconstitutional, then both parties conspired to dispose of the document a long time ago.
Ah, you say, but the Supreme Court is different. Actually, it’s not.
The political infighting over staffing our courts is, in fact, less harmful when it affects one nominee who understands fully the political minefield he or she is walking into in accepting the nomination to the high court than when it affects dozens or hundreds of people who undertake to serve with only a limited sense of the blood sport the Senate will make of them. And more importantly, it is less harmful when it plays itself out over a single vacancy on the Supreme Court than when it manifests itself over and over in significantly understaffed federal appellate courts.
Unlike the Supreme Court, which gets to pick its cases and hears on average about 80 cases per year, only a few of which it decides on a 5-to-4 basis, the appeals courts must dispose of thousands of appeals each year. Over the past two decades, both parties have concluded that federal appellate vacancies are far preferable than fully staffed courts if full staffing requires confirming nominees of the other party. This has been the case even when appellate court after court has declared “judicial emergencies,” when vacancies result in intolerably high caseloads for the remaining judges. Since both parties have accepted (and ignored) those emergencies with equanimity, it is a bit late in the day now to cry crocodile tears over a single vacancy on a court that hears a few dozen cases and needs a tie-breaking vote only in a small handful of those. It’s symbolic, yes, but it’s symbolic in a non-acute setting of a reality that has long existed in acute situations elsewhere and about which the political culture plainly does not care.
Lest any reader think we are making a partisan point here, we hasten to emphasize that if the Senate and the presidency flip hands in November, we also think there will be no principled basis to demand that a Democratic Senate ever consider a nominee by President Trump, Cruz, or Rubio. The decision on the part of a future-Majority Leader Charles E. Schumer at that point is that a 4-to-4 court is a better long-term equilibrium for him than confirming a nominee of the other party will be exactly as defensible as current-Majority Leader Mitch McConnell’s decision today that a 4-to-4 court is a better short-term equilibrium for him than confirming a nominee from Obama.
Whatever elevated rhetoric anyone invokes to suit his or her convenience, the fact is that our real judicial nominations system is now one of raw power and nothing else.
“That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts,” Scalia once wrote in an important separation of powers dissent. “Frequently an issue of this sort will come . . . clad, so to speak, in sheep’s clothing. . . . But this wolf comes as a wolf.”
Our new judicial nominations system also came as a wolf. There were many good reasons, knowable at the time, not to let the wolf through the door. Both parties had other priorities — most important the perceived urgent need to prevent the other party from confirming its nominees. Appeals to principle and precedent ring hollow now — particularly because the parties are still appealing only to principles that any sentient observer knows they would not follow themselves.