Confirmation Chaos and Constitutional Corruption

Within hours of hearing the news of Justice Antonin Scalia’s passing, Senate Majority Leader Mitch McConnell announced that his caucus would not be holding any hearings or votes on a replacement nominee until after the election. “Let the people decide” became the rallying cry of the Republican majority, and all of the party’s members on the Senate Judiciary Committee signed a letter pledging fidelity to the #NoHearingsNoVotes plan.

When President Obama announced the nomination of Judge Merrick Garland a month later, nothing really changed: this wasn’t about the nominee’s qualifications, but an argument from the political principle that the gaping hole left by a jurisprudential giant shouldn’t be filled until the voters in a polarized nation — who reelected Obama in 2012 but then handed the Senate to the GOP in 2014 — could have their say.

This seemed like unprecedented obstructionism, though historically plenty of judicial nominees have never gotten hearings or votes, and the last time that a Senate confirmed a nomination made by a president of the opposing party to a high-court vacancy arising during a presidential election year was in 1888. Indeed, under recent Republican presidents, Democratic senators ranging from Joe Biden to Chuck Schumer to Harry Reid announced that they wouldn’t consider any new nominees until after the election.

That’s literally their prerogative: Just like the Senate can decline to take up a bill passed by the House, or a treaty signed by the president, it can surely decide how to exercise its constitutional power to “advice and consent” on judicial nominations. This is purely a political matter, with the Senate staking out how it wants to exercise its power and the voters being the ultimate judges, as it were, of that tactic. Indeed, if the Senate decided not to confirm any nomine to any position, it could do so — and likely pay a high political price unless the president were so compromised as to lack any popular legitimacy whatsoever.

Why the Push to Fill the Vacancy?

Why has it come to this? Why all the focus on one office, however high it might be? Sure, it’s an election year, but that doesn’t mean that governance grinds to a halt. If Secretary of State John Kerry died or resigned, it would certainly be a big deal — with Republicans grilling his would-be successor on President Obama’s foreign-policy record — but there’s no doubt that the slot would be filled if someone with generally appropriate credentials were nominated. Even a vacancy in the vice-presidency wouldn’t last unduly long, though Republicans would jockey to extract concessions for not having Speaker Paul Ryan be President Obama’s designated successor (even if for mere months).

But of course executive appointments expire at the end of the presidential term, while judicial appointments long outlast any president. To take an extreme example, an important ruling on donor-list disclosures was made this past April by a district judge appointed by Lyndon Johnson. Justice Scalia himself served nearly 30 years, giving President Reagan legal-policy agenda a bridge well into the 21st century. And let’s not forget that the Scalia-less Supreme Court stands starkly split 4-4 on so many controversial issues: campaign-finance law, the Second Amendment, religious liberty, executive and regulatory power, to name just a few. In this already bizarre 2016 election, legal pundits have finally gotten their wish that judicial nominations are firmly among the top campaign issues.

If we want to have the rule of law, we need judges to interpret the Constitution faithfully and strike down laws when government is exceeding its authority.

Moreover, this year marks the 25th anniversary of the bitter confirmation hearings of Justice Clarence Thomas. HBO aired a reenactment called “Confirmation,” which itself was controversial, reopening old political wounds regarding its portrayal of what Thomas referred to as a “high-tech lynching.” Justice Thomas received the narrowest Supreme Court confirmation in more than a century, 52-48 — and this less than four years after the failed nomination that ushered in the poisonous modern era of confirmation battles, that of Judge Robert Bork in 1987.

Senate Democrats had warned that nominating Bork would provoke a fight unlike any President Reagan had faced over judges — after Scalia’s unanimous confirmation the previous year. And so, the very day that Reagan nevertheless announced this pick, Ted Kennedy went to the floor of the Senate to denounce “Robert Bork’s America,” which is a place “in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.” It went downhill from there, as the irascible Bork — with an irascible beard — refused to adopt the now well-worn strategy of talking a lot without saying anything. A few years later, Ruth Bader Ginsburg would refine that tactic into a “pincer movement,” refusing to comment on specific fact patterns because they might come before the Court, and then refusing to discuss general principles because “a judge could deal in specifics only.”

History of Confirming Justices

Confirmation processes weren’t always like this. The Senate didn’t even hold public hearings on Supreme Court nominations until 1916 — and that innovation was driven by the unusual circumstances of (1) the resignation of a justice (Charles Evans Hughes) to run against a sitting president (Woodrow Wilson) and (2) the first Jewish nominee (Louis Brandeis). It wouldn’t be until 1938, with (also-Jewish) Felix Frankfurter, that a judicial nominee actually testified at his own hearing. In 1962, the part of Byron White’s hearing where the nominee himself testified lasted less than 15 minutes and consisted of a handful of questions, mostly about the Heisman-runner-up’s football-playing days.

What’s changed? Is it TV and social media, the 24-hour news cycle and the viral video? Is it that legal issues have become more ideologically divisive? No, it isn’t that there’s been a perversion of the confirmation process, increasingly demagogic political rhetoric, or even the use of filibusters. Those are symptoms of the underlying problem, a relatively new development but one that’s part and parcel of a much larger problem: constitutional corruption.

As government has grown, so have the laws and regulations over which the Court has power. All of a sudden, judges are declaring what Congress can do with its great powers, what kind of law the executive branch can write into the Federal Register, and what kinds of new rights will be recognized.  As we’ve gone down the wrong jurisprudential track since the New Deal, the judiciary now has the opportunity to change the direction of public policy more than it ever did. So of course judicial nominations and confirmations are going to be more fraught with partisan considerations.

This wasn’t always a problem — in the sense that partisanship didn’t really mean that much other than rewarding your cronies. It’s a modern phenomenon for our two political parties to be so ideologically polarized, and therefore for judges nominated by presidents from different parties to have notably different views on constitutional interpretation.

Under the Founders’ Constitution, under which the country lived under for its first 150 years, the Supreme Court hardly ever had to strike down a law. If you read the Congressional Record of the 18th and 19th centuries, Congress debated whether legislation was constitutional, much more than whether it was a good idea. Debates focused on whether something was genuinely for the general welfare or whether it only served, for example, the state of Georgia. “Do we have the power to do this?” was the central issue with any aspect of public policy.

In 1887, Grover Cleveland vetoed an appropriation of $10,000 for seeds to drought-stricken Texas farmers because he could find no constitutional warrant for such action. In 1907, in the case of Kansas vs. Colorado, the Supreme Court said that “the proposition that there are legislative powers affecting the nation as a whole although not expressed in the specific grant of powers is in direct conflict with the doctrine that this is a government of enumerated powers.”

The Changing Role of Judges

We also had a stable system of unenumerated rights that went beyond those listed in the Bill of Rights to those retained by the people per the Ninth Amendment. The Tenth Amendment was similarly redundant of the whole structure: the idea is that we have a government of delegated and enumerated — and therefore limited — powers.

Judges play much larger roles today. The idea that the General Welfare Clause says that the government can essentially regulate any issue as long as the legislation fits someone’s conception of what’s good — meaning, that you get a majority in Congress — emerged in the Progressive Era and was codified during the New Deal. After 1937’s so-called “switch in time that saved nine” — when the Supreme Court began approving grandiose legislation of the sort it had previously rejected — no federal legislation would be struck down until 1995. The New Deal Court is the one that politicized the Constitution, and therefore too the confirmation process, by laying the foundation for judicial mischief of every stripe — be it letting laws sail through that should be struck down or striking down laws that should be upheld.

This is not about the tired old debate about “activism” versus “restraint.” So long as we accept that judicial review is constitutional and appropriate in the first place — how a judiciary is supposed to ensure that the government stays within its limited powers without it is beyond me — then we should only be concerned that a court “get it right,” regardless of whether that correct interpretation leads to the challenged law being upheld or overturned. For that matter, an honest court watcher shouldn’t care whether one party wins or another. To paraphrase John Roberts at his confirmation hearings, the “little guy” should win when he’s in the right, and the big corporation should win when it’s in the right. The dividing line, then, is not between judicial activism and judicial restraint (passivism?), but between legitimate and vigorous judicial engagement and illegitimate judicial imperialism.

In that light, the recent confirmation battles — whether you look at Bork, Thomas, the filibustering of George W. Bush’s lower-court nominees, or the scrutiny of Sonia Sotomayor’s “wise Latina” comment — are all a logical response to political incentives. When judges act as super-legislators, senators, the media, and the public want to scrutinize their ideology and treat them as if they’re confirming lifetime super-politicians — and rightfully so.

Judges as Super-legislators

Sure we can tinker around the edges of the appointment process with bipartisan commissions, or have set terms or fixed retirement ages — or we could have scheduling requirements for when hearings and votes have to occur after a nomination — but all that is re-arranging the deck chairs on the Titanic. And the Titanic is not the judicial-nominations process, but rather the ship of government. The fundamental problem is the politicization not of the process but of the product, of the role of government, which began with the Progressive Era politically and was institutionalized during the New Deal.

Justice Scalia described this phenomenon in his dissent from the 1992 abortion ruling in Planned Parenthood v. Casey:

[T]he American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here — reading texts and discerning our society’s traditional understanding of that text — the public pretty much left us alone. Text and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text … then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school — maybe better.

Enforcing the Founding Document

Ultimately judicial power is not a means to an end, be that liberal, conservative or anything else, but instead an enforcement mechanism for the strictures of the founding document. We have a republic, with a constitutional structure intended just as much to curtail the excesses of democracy as it was to empower its exercise. In a country ruled by law and not men, the proper response to an unpopular legal decision is not to call out the justices at a State of the Union address but to change the law or amend the Constitution.

Any other method leads to a sort of judicial abdication and the loss of those very rights and liberties that can only be vindicated through the judicial process — which by definition is counter-majoritarian. Or it could lead to government by black-robed philosopher kings. Even if that’s what you want, why would you hire nine lawyers for the job?!

So if we want to have the rule of law, we need judges to interpret the Constitution faithfully and strike down laws when government is exceeding its authority. Depoliticizing the judiciary is a laudable goal, but that’ll happen only when judges go back to judging rather than merely ratifying the excesses of the other branches while allowing infinite intrusions into economic liberties and property rights. Until that time, it’s absolutely appropriate to question judicial philosophies and theories of constitutional interpretation — and to vote accordingly.

Regardless of what happens to the Garland nomination or who’s president come January 2017, the battle for control of the third branch of government will continue — as will the attention paid to the resulting confirmation battles.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.