Friday, July 08, 2005

SCOTUS Nominations

I know very little about playing hardball in politics. But it does seem like too much is being made out of the possibility that the Democrats will filibuster against a vote on a nominee for the Supreme Court.

My recollection of Supreme Court confirmations is that the nominees look pretty intelligent when they answer the Judiciary Committee members' questions thoughtfully and the members of that Committee look like idiots when they make speeches rather than asking questions. Nominees look silly when they refuse to give answers to reasonable questions. In my view, reasonable questions are things like, "Did you agree with the majority or the dissents in Kelo? Please explain why." Anything in their past judicial rulings or scholarly writing is also fair game. Hypothetical questions about cases that don't exist or specific cases that may be pending are not.

Okay, so suppose the President nominates someone who has an impressive record and who answers reasonable questions with thoughtful answers. What is the Democrats' recourse? Huge media blitz? Big deal. Most people now tune that out, because there will be ample talking head noise both for and against the nominee. Massive demonstrations with histrionics? Same as the media blitz. Worried about a repeat of the Bork nomination? Up the ante by nominating someone from an underrepresented group on the Court, like a woman or ethnic minority. There are several on the list of well qualified candidates that the President seems to be considering.

And, ultimately, if it looks like the nominee will receive a Senate majority, the Democrats could attempt to filibuster. Again, big deal. How long could they possibly sustain it? Some Democrats might defect, allowing a cloture vote, as the rest of the government's business comes to a halt. Just wait them out. They will look like idiots. All the President has to say is, "Judge X is one of our nation's most respected judges. S/he answered the Senators' questions in a thoughtful manner during the confirmation process. S/he is entitled to an up-or-down vote on the floor of the Senate." And he should say that and only that every day. Ultimately, he wins.

Another strategy would be to ask the nominee to withdraw, to bring the filibuster to a close, and then, at the first opportunity, make a recess appointment. This isn't as successful an outcome, but it is worth pointing out that recess appointments are actually written into the Constitution. Filibusters aren't.

The sentiment in this country is toward simple majorities and people getting along with each other. If the President nominates someone with appropriate qualifications who can thoughtfully answer the Committee's questions, then he will have the sentiment of the people behind him. He need only keep the focus on the Senate Democrats' refusal to act and he will eventually get his way.

For a very different opinion, by someone who knows a lot more about hardball in politics, see Patrick Ruffini's post from yesterday.

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Patrick Sullivan said...

'Up the ante by nominating someone from an underrepresented group on the Court, like a woman or ethnic minority.'

That won't stop the Democrats. It's all about fund raising, for which they need a bogeyman. But, you're correct that Bush holds all the cards. As the first Monday in October approaches without the seat filled because of a filibuster, the Dems look foolish, because a recess appt. will fill it.

Jonah B. Gelbach said...

recess appointments are actually written into the Constitution. Filibusters aren't.

Yes and no.

Yes, because it's true that the Constitution doesn't specifically refer to filibusters.

Much more relevantly, no. Why? Because (i) everyone knows the Senate has the right to refuse to consent, and (ii) the Constitution explicitly leaves it to the houses of Congress to determine their own rules (It's in Article I, Section 5, Clause 2): "Each House may determine the Rules of its Proceedings". The Senate's rules allow for a filibuster. This is one of the reason that the Republican attempts to call their nuclear threat the "Constitutional option" have been so ridiculous.

One interesting thing I heard recently is that recess appointments to the Court are not at all precedented. According to this article, "Since 1791, 15 Supreme Court Justices began their tenure with a recess appointment, the most recent being Justice Potter Stewart in 1958." I heard recently that Earl Warren was also one (though he was ultimately confirmed, I believe).