I have never lost a public debate more completely than I have lost the debate over judicial confirmations. For many years, across administrations of both parties, I clung to the increasingly minority view that each judicial nominee ought not be a skirmish in a larger war for the courts, that the Senate should tend to defer to the president in its exercise of the power to “advise and consent” on nominees, and that the Senate should treat nominees decently and without undue delays. I started arguing this position during the Clinton administration; I maintained it during the Bush administration; I wrote a book on the subject warning of the dangers of the erosion of norms surrounding confirmations.
I stand by everything I argued.
But those of us who argued for de-escalating what I called the “Confirmation Wars” got our clocks cleaned. We lost decisively—on every front and against every foe. We lost at the hands of Democrats and Republicans alike. We lost at the hands of interest groups. We lost at the hands of law professors. Perhaps most importantly, we lost at the hands of voters—party-base voters, to be precise—who demanded of their elected officials precisely the kind of activity of whose dangers we warned. In a democracy, voters tend to get what they want in the long run. In this case, it didn’t even take very long.
And so we come to a place where Brett Kavanaugh is preponderantly likely to be confirmed by the Senate, yet for all the wrong reasons. He will be confirmed not because he is well qualified to sit on the Supreme Court, though he is certainly well qualified. He will be confirmed not because he is a principled and talented jurist, though he is a principled and talented jurist. Indeed, he will be confirmed not because of any of his virtues, though he has many virtues.
He will be confirmed because there are 51 Republican senators in office and a Republican vice president who can break a tie if need be. While he may get a few Democratic votes, he will get confirmed—indeed, he will get a vote at all—because Republicans right now have the raw political power to confirm him on their own. That political constellation of power exists because people expect him to vote in certain ways on certain types of cases, to deliver certain specific outcomes on issues they care about. Democrats will oppose him for the same reasons. And here’s the rub: If the balance of power changes even a little bit before the vote on him takes place and Democrats somehow come into a working majority, then Kavanaugh will not be confirmed and might not even get a vote. Our partisanship over Supreme Court nominations is not yet perfect, but it is getting there fast.
Our debate about judges takes place in the language of principle. We pretend to debate judicial philosophies, when we all know there was no philosophical objection to confirming Merrick Garland. We pretend to debate whether a given dilatory tactic is legitimate or not, when everyone on both sides of the argument knows they will adopt the other’s arguments the moment power changes hands. We strike principled poses about what the Constitution requires of the Senate or what the Senate’s precedents allow, because we don’t like acknowledging that the only real principle at issue in the Senate’s treatment of judicial confirmations boils down to power—who has it and who doesn’t at any given moment in time.
Before exploring the implications of our contemporary environment with respect to the Senate and judicial confirmations, let me pause over two critical antecedent points. The first is that this situation actually is new. While America has seen ideological contest over the courts at various times in its past, we have never before in our history faced a reality in which our normative expectation was that the opposition party would oppose the average Supreme Court appointment of a nominee whose formal qualifications were not seriously in question—and block that nominee if humanly possible. We have never before faced a situation in which our working assumption was that Democrats would oppose all Republican nominees and that Republicans would oppose all Democratic nominees and that we would thus create partisan camps on every appellate court in the country. While the Robert Bork and Clarence Thomas nominations provoked sharp battles, the Anthony Kennedy, Antonin Scalia, and Sandra Day O’Connor nominations did not. And as recently as the Clinton administration, Supreme Court nominees were still being confirmed with near unanimity. Barring a dramatic shift in political climate, that’s all but unthinkable today.
The second point is that moral equivalence between the two sides is the only analytically serious way to understand our new reality. Neither side likes this point. Democrats and Republicans alike pretend that the escalations in the judicial confirmation wars took place entirely at the other side’s hands. They both see their own roles as primarily defensive, responsive to the other side’s aggression. They are both—the word is not too strong—lying, sometimes to themselves, sometimes to the public, sometimes to both.
In fact, both sides have incrementally escalated at every stage since at least the late 1980s. At no point did either step back and sue for peace. The erosion of the norm of a relatively modest Senate confirmation process took place because both sides calculated at every stage—probably rightly—that the other would take the next incremental escalatory step if roles were reversed. They calculated that base voters would sooner forgive escalation than they would forgive weakness. They calculated that they could get away with escalation. And they calculated that they could lie about what they were doing—flamboyantly and without shame—and get away with it. And so they did.
The search for the original sin is a mug’s game. Democrats opposed Bork for ideological reasons and then held up some appellate-court nominees during the first Bush administration. Republicans held up a lot of appellate-court nominees during the Clinton administration, but stopped short of using the filibuster. Democrats during the second Bush administration used the filibuster to actually finish off nominees but stopped short of using it profligately—because Republicans threatened to go “nuclear” and change the rules to prevent the filibustering of nominees. The result was a temporary truce in which Republicans, for their part, stopped short of carrying out this threat. When Democrats controlled the Senate during the Obama administration, however, both sides switched and escalated; Republicans profligately filibustered and Democrats pulled the trigger on the nuclear option. They did this only for lower-court nominees, however, leaving the filibuster rule in place for Supreme Court nominees. Republicans, in control of the Senate during an election year, held a Supreme Court seat open for the better part of a year to give themselves the chance of filling it. When they won the 2016 election, they ended the filibuster for Supreme Court nominees, too.
There are consequences to this protracted war. The most important is that the courts are, in fact, more ideologically divided than they used to be—and, more particularly, that those divisions track party lines more closely than they used to. As Lee Epstein and Eric Posner recently wrote in The New York Times:
The court has recently entered a new era of partisan division. If you look at close cases—5 to 4 or 5 to 3—going back to the 1950s to illustrate this division, you will see that the percentage of votes cast in the liberal direction by justices who were appointed by Democratic presidents has skyrocketed. And the same trajectory applies on the other side: The percentage of votes cast in the conservative direction by justices who were appointed by Republican presidents has also shot up.
Whether the war for the courts is more cause or effect of the increasing ideological uniformity of appointments is a complicated question. In all likelihood, cause runs in both directions. That is, we fight more over courts because of an increasingly ideological sense of how courts should operate, and in turn, our fights over the courts tend to entrench our increasingly ideological sense of how courts should operate. Whichever is cause and whichever is effect and in whichever proportion, however, the result is clear: Increasingly well-defined ideological voting blocs in the Senate are generating increasingly well-defined voting blocs on courts. This is clearest on the Supreme Court but it is also coming into focus on some federal appellate courts.
In the world that I argued for, liberal senators would support Kavanaugh. They would do so because he is qualified, because the decision to give President Trump the authority to select judges was made when the electorate chose Trump over Hillary Clinton, and because the cost of opposing Kavanaugh—that Republican senators would oppose similarly qualified judges when the presidency is in Democratic hands—exceeds the possible benefits of opposition. This set of assumptions was driven by norms: not by law, not by the Constitution, not even by Senate rules. It was just the way things worked, because everything worked better if everyone behaved that way. And everyone behaved that way because everyone had confidence that those on the other side would behave that way as well.
Polarization put cracks in that confidence. And once people no longer believed the other side would observe the norm, the norm collapsed remarkably quickly.
Today, I have no good answer to a liberal who says he can’t support Kavanaugh, because he lacks confidence that Kavanaugh will affirm Roe v. Wade. Why should he support a justice who won’t deliver the political results he wants? Similarly, I had no good answer to Republican senators who wanted to hold Scalia’s seat open to see what happened in the election. Why shouldn’t they have supported Mitch McConnell in freezing out Garland? Why shouldn’t their Democratic counterparts have sought to filibuster Neil Gorsuch out of some combination of retaliation and suspicion of Gorsuch’s ideological views? And why shouldn’t a Republican senator have then voted to deprive Democrats of the ability to do this? If Democrats retake the Senate in the fall, I fully expect them to confirm no additional justices over the remaining two years of Trump’s first term and to confirm almost no appellate-court nominees either. I cannot make an argument that they should behave otherwise. If there are no rules, then there aren’t a lot of shoulds. There are only cans.
But here’s the problem: The breakdown of the norms that have traditionally induced restraint in the judicial-confirmation process will not end with the creation of polarized judicial nominations and confirmations. It will run deeper. A highly polarized Senate in interaction with a winner-take-all presidency picking judges on the basis of raw power alone and creating party factions on every court in the country is a contagion that will spread.
Already, in response to the retirement of Kennedy and the nomination of Kavanaugh, some Democrats have begun talking about court packing. And why not? There’s no magic to the number nine as the proper number of justices. Changing that number requires only an act of Congress. And while court packing has a disreputable flavor because of President Franklin D. Roosevelt’s ill-fated effort at it during the Depression, it’s a perfectly sensible next step for either side in making sure the “balance” of the court is maintained so as to prevent erosion of “our” values. And hey, Republicans just “stole” a seat. Why not create two more by way of compensation? If what is happening in the confirmation process is okay—and we have evidently decided that it is—it is only a matter of time before one side or another tries this, too. Perhaps the Democrats won’t have the raw power to get this done any time soon. But eventually, one side will. And the pattern of escalation will continue—because again, the only thing stopping it from happening before was that it was unthinkable.
The contagion won’t even stop there. There are other powers that Congress has over the courts that it generally refrains from deploying to force jurisprudential outcomes that it likes or to impede outcomes it dislikes. Why not defund courts that rule in ways temporal majorities dislike, for example?
Come to think of it, most courts exist not by constitutional decree but because of acts of Congress. The Constitution created the Supreme Court, but it left the entire rest of the judiciary to Congress to “from time to time ordain and establish.” During the 1990s, conservatives pushed this idea of breaking up the famously liberal Ninth Circuit Court of Appeals. While it never came to fruition, it wasn’t unthinkable then and hasn’t been at other times in the past. And in an environment in which we all accept an overtly political understanding of the courts, why should it be unthinkable? Why not break up courts that routinely do things that political majorities don’t like?
Even the Supreme Court is not immune from a much more activist Congress. We tend to think of the Supreme Court’s jurisdiction as vast, but it’s only vast because Congress makes it so. The Supreme Court’s original jurisdiction, the jurisdiction Congress cannot touch, is actually pretty narrow. The Constitution limits it to “all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party.” As to “all the other cases … the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” The exact parameters of Congress’s power to strip the courts of jurisdiction are not well defined, partly because Congress has tended to avoid provoking confrontations over it. But that’s a norm of interbranch respect, too. Why be so gentle? If Congress doesn’t want the Supreme Court to hear abortion cases, it could strip it of appellate jurisdiction over them—or at least, it could try.
In a world of polarized partisan control over the gateways to courts and thus partisan factions on the courts themselves, I can see no reason why these things won’t eventually happen. And I won’t even be able to make a principled argument that they shouldn’t happen.