Commentary

Mr. Smith Locks up Washington

This article appeared on FoxNews.com on April 12, 2005.

Do you want to silence Mr. Smith? That’s the question posed by a new television advertisement featuring Jimmy Stewart as the filibustering senator in Mr. Smith Goes to Washington.

The ad, of course, targets Republican proposals to outlaw filibusters of the president’s court nominations.

Behind this “Mr. Smith” ad is a noble idea: minority rights. Because the filibuster empowers determined senators to thwart a majority juggernaut, the ad suggests abolishing the filibuster harms powerless minorities.

But the ad has it backwards. Ending filibuster of judicial nominees doesn’t harm minorities. It helps them.

Why? Consider: In our constitutional system, independence lies with tenured federal judges — not politicians seeking election. Judges are therefore best positioned to protect unpopular interests. The filibuster, however, spawns a confirmation process biased against judges who stand up to popularly elected officials.

Think about it this way: When exercising its powers of advice and consent, the Senate acts as an institutional nay-sayer, vetting arguments against a nominee. In a “filibuster world,” it takes 60 votes to confirm, meaning an argument against a judicial pick need convince only 41 senators, not 51, to win the day. The filibuster subsidizes senatorial nay-saying.

That’s like handing out cudgels at a gauntlet. When attacks on a nominee face fewer hurdles, all nominees are at greater risk of getting knocked out of the running. A higher-risk confirmation process, in turn, favors risk-averse nominees who carefully cultivate an unthreatening record.

This is no way to promote judging against the grain. Consider a recent paper by law professors Stephen Choi and G. Mitu Gulati (“Choosing the Next Supreme Court Justice: An Empirical Ranking of Judicial Performance”), in which they suggest metrics for quantifying judicial quality — including productivity (measured by opinions authored), influence (measured by citations to a judge’s opinions outside her circuit) and independence (whether a judge votes like others nominated by the same party).

The Choi-Gulati criteria are proxies for characteristics a counter-majoritarian court system needs. Yet, according to statistician John Lott, judges who rate highly under these measures have dwindled since the 1980s, as the nomination process grows more contentious.

To be sure, one might argue that the filibuster’s primary audience is the president, that it deters him from picking “partisan” (i.e., less independent) judges. If so, filibusters and independent judging might go hand-in-hand.

But this deterrence argument is problematic.

First, it presumes presidents are good at predicting how a nominee will vote — and therefore are deterrable. In reality, presidents aren’t astute at predicting judicial track-records: Eisenhower and Nixon, for instance, picked five of the seven justices who voted to legalize abortion in Roe v. Wade. Indeed, many of the most prominent post-war liberal justices (so-called) were appointed by Republican presidents — including Justices Earl Warren, William Brennan, John Paul Stevens, David Souter and Harry Blackmun.

Second, it also assumes senators accurately identify how judges will act — a prerequisite for putting senatorial deterrent power to good use. But senators’ powers of prognostication aren’t any better than the president’s. Remember the confirmation hearings on Justice David Souter, a reliable liberal vote on the current Court? Ted Kennedy predicted he would solidify a “5-4 anti-civil rights, anti-privacy majority.”

Here’s the bottom line: In the eyes of the prospective nominee, the filibuster intensifies an inherently unpredictable process, turning more and more objections by ill-informed politicians into potential killers. When pondering how to thread the confirmation needle, savvy, ambitious nominees have greater incentive to pull punches, please as many constituencies as possible, and keep their heads down.

Which brings us back to Mr. Smith. Sure, the filibuster might give him more power to dazzle the Senate with oratory. But imagine he were a lawyer nominated to a justiceship? Could Mr. Smith get confirmed? In the world of the filibuster, the odds are grim. The filibuster selects against Mr. Smith’s best qualities — imagination, courage and vocal independence. That’s bad news for minority rights: In a judiciary where those qualities are scarce, minorities can expect less — not more — judicial protection.

Mark K. Moller is the editor-in-chief of the Cato Supreme Court Review.