Why the Democrats Are Sluggish on Judicial Nominations

Democratic senators are slow-waking President Obama's judicial nominations, something that our constitutional law professor chief executive is said to be frustrated about. The Washington Independent's chronicler of the conservative movement, David Weigel, has a theory: the White House itself is to blame because it's failed the zone with nominees and hasn't gone to the mat for all of them. Republicans, he notes, were quite aggressive in squeezing their nominees through a tighter Senate vise.

Why would this be so? Why would Democrats be more tepid than Republicans? The root, I think, is in the asymmetric importance that the two parties ascribe to this issue. For many reasons, GOP movement conservatives care deeply about judicial nominations -- advancing them when they are in control, and blocking them when they are not. But for Democratic movement liberals, they are less central.

The GOP's critical interest group, the Christian right, puts judicial nominations -- pro and con -- at the top of their list. The Democrats' most critical interest group, organized labor, wouldn't rate it in the top 20 of things it cares about. 

Put another way, any Republican running for president in 2012 will be seeking the support of the three or four key leaders of the conservative judicial selection/opposition movement. But I doubt that the Democrats who ran in 2008 spent 10 seconds seeking out Nan Aron's endorsement, as influential and respected as she may be. There are exceptions, of course, such as when the left rose up to fight Robert Bork or Clarence Thomas. Daily, though, the 10 most important conservative activists put judicial selection nearer to the top of the list of things they care about than do the 10 most important liberal activists.

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Similarly, because the Democratic Party has a much broader coalition than the Republican Party, there is an asymmetric comfort with social issue debates. Judicial confirmation fights -- and the selection of controversial nominees -- inevitably come down to battles over social issues. And the GOP senators are more comfortable doing battle over social issues than are Democratic senators. The GOP is fine defending really conservative nominees like Roberts and Alito (and their court of appeals parallels) with right-wing records on civil rights, gay rights, and abortion. But the Democratic senators quake in their boots to defend David Hamilton's legislative prayer case, or Sonia Sotomayor's firefighters decision. Democrats are happy to defend liberal views on economic matters -- hence, 57 or 58 or 59 are ready to vote for EFCA -- but judicial nominations are not about economic matters. And Democrats are still spooked by cultural issues.