All right, let's try some arguments out. I've been teetering back and forth over whether it's a good thing for the Senate to be able to filibuster judicial nominees. Please note: This is entirely
separate from the issue at hand, namely, whether Bill Frist and James Dobson should be allowed to override Senate rules
with their "nuclear option". The answer to that is: No, of course they shouldn't. Respect the rules, boys! But suppose we could all sit down and decide, without knowing anything about the composition of Congress or the presidency, whether a minority of Senators should be able to block a judicial nominee. What would we choose?
On the one hand, as I've written before
, there's a principled case to be made for requiring every court nominee to undergo some sort of supermajority approval. This is because: a)
the Senate is appallingly undemocratic and a one-party majority in the Senate will not always represent the majority of the country (as is the case today), and b)
judicial nominees are, for better or worse, imposed on the entire country for a period of time that outlasts the politicians who choose those judges. So it makes sense to try to get as wide a consensus as possible before confirming our lil' black-robed princes. No why do I think 60 votes is a good cutoff for that consensus, as opposed to 75 votes or 100? Dunno. It just seems about right. We make arbitrary limits all the time (why is the drinking age 21? Why not 20 or 22?), but that's no argument against drawing some
sort of line.
Another good pro-filibuster argument I've often heard is that it would force presidents to nominate more moderate
judges. It sure seems, after all, that the mere threat of a filibuster by the Republican Senate forced Bill Clinton to avoid radical nominees and put up Breyer and Ginsburg instead, two liberal but ultimately very "technocratic" judges. (In fact, if you define "judicial activism" by willingness to strike down state and federal laws, then Ginsburg and Breyer are, with Rehnquist, the three least activist
judges on the court.) Now I'm still conflicted as to whether judicial restraint would be better for progressivism in the long term, but that's me. If you like moderate judges, as most people seem to do, then the filibuster might be appealing. Especially since parties are far more unified these days, and vote less on principle and more along strict party lines, it's less likely that voices of moderation will come from within a given majority party.
(Of course, you could also say that the very idea of a moderate judge is silly
. You could argue that good judges can't be uncontroversial, because all good judges have some sort of coherent methodology for interpreting the constitution, that methodology will inevitably raise hackles, and hence, good judges are precisely the sort who will inevitably cause friction. This seems like a weird argument to me, but it is true that the notion of a "moderate" judge is kind of goofy. Legislators are called "moderate" when they compromise with various interest groups to write laws. But that's not the sort of thing judges should be doing.)
Anyway, let's see how a pro-filibuster arrangement would work in practice, today. Say both parties agree that 40 senators can now block whatever judges they deem too radical. Now the minority party can't block every judge, so they'll have to pick and choose who to filibuster. So clearly the smart strategy for Bush to take would be to nominate more
radical judges. Want to get Janice Brown through? Fine, just nominate 10 people even wackier
than she is, and the Democrats will eventually have to relent on some of them or pay the price. For their part, Republicans might also pay a price for trying this tactic—they'd have to associate themselves with a lot of genuinely terrifying judges, after all—but so long as the Democrats are formally allowed to block the absolute scariest, I don't think voters will much care who Bush nominates. (The interesting question here: Assuming that filibusters of nominees were allowed and agreed upon, then in the event of gridlock, on whom would the political pressure fall? The Senate, to ease up its standards? Or the president, to start putting up more acceptable nominees?)
Furthermore, if it's true that, even with supermajority approval, some radical judges would still get through, then there's another weird side-effect. The party in power is less
likely to pay the price for appointing radical and unpopular judges, since those judges, after all, were confirmed with the consent of the minority party.
Now let's say the filibuster is eliminated, and Republicans can confirm any judge they want on a party-line vote. At this point there's more of a limit to how radical and unqualified the nominations can really be, since Republicans, and Republicans alone, have to bear responsibility for whoever gets put on the courts. Or at least that's the theory, and it's certainly the vision of the confirmation process laid out in Federalist #76
. The reality, though, depends on how responsive you think our democracy really is, and my answer here is "not very"—not just because voters are lazy and apathetic, but because the structure of the Senate and the electoral college can prevent a democratic majority from expressing its frustration. (The 55 Republican senators we have now, after all, represent less than half
of the population, and received fewer votes than their 45 Democratic opponents.) The idea that popular political pressure alone will keep the majority party in line seems, sadly enough, quite specious.
At any rate, I'm leaning towards keeping the filibuster and imposing a supermajority requirement for all judicial nominees, partly out of my belief that so long as simple congressional majorities don't need to reflect actual popular majorities, as is the case now, then there should
be obstacles to letting those congressional majorities have their way. Especially on something irrevocable, like judges. Although, true, this is just a bizarre obsession I have. (Ah, how many editorial meetings end with me saying, "Well, this wouldn't be a problem if we just abolished the electoral college
and had 50 at-large senators
"? Um, most or all.) Anyway, I'm still thinking about it.