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Sunday, November 15, 2009

On "Reshaping the Federal Judiciary"

The New York Times's Charlie Savage has a very Savagesque story today discussing the relative paucity of judicial nominations that have either been made by President Obama or made it through the process.  Savage describes this as "deflating the hopes of liberals that the White House would move quickly to reshape the federal judiciary after eight years of Republican appointments."  

The story provides some useful facts concerning the ways in which recent and pending departures from the White House counsel's office may slow things down still further.  The administration's response to the story -- that it is the number of confirmations and not nominations that matter, and that it is moving methodically and successfully on this front -- does not strike me as terribly persuasive.  It is also the case, when we talk about judicial vacancies, that whether one views the number of vacancies as a crisis or as no big deal tends to depend on who is doing the nominating.  I am mindful of the way that judicial vacancies changed in some eyes seemingly overnight from unexceptional to a "crisis" once the administration changed from Clinton to Bush.  

Still, the story strikes me as a poor one.  It reads very much like many such articles -- as serving primarily as a device for one faction in the Democratic Party to send a message to another faction, and an attempt to define the agenda to their advantage.  (Such maneuvers are of course not limited to Democrats.)  I understand one's perspective often drives how one views this story, and that many Republicans may feel that the Democrats are more aggressive in their judicial agenda than the Republicans when each occupy the White House.  (I don't agree.)  But the story does not seriously acknowledge the possibility either that the White House thinks that other issues on a very crowded political agenda are just more important than judicial nominations, or that it has something else in mind when it comes to restocking the federal judiciary than simply meeting staunch conservatives with staunch liberals -- that it actually likes judicial moderates for their own sakes.  To the extent it acknowledges any of these things, it certainly does not acknowledge that the administration might have a point.

Both the strong right and the strong left seem to overestimate the importance of judges as opposed to other policy matters, and to assume that the reward for any party's victory should be the delegation of judicial picks to their wing of the party.  In my view, the Republicans generally do proceed in this manner when in office, although again it may be my perspective talking.  Either way, there is no reason we have to agree whole-heartedly with this position, as Savage seems to do.  And we should certainly keep in mind the extent to which certain interest groups on both the left and the right lose their raison d'etre if they don't gain power in this area, and thus depend on these assumptions for their daily bread.  

The orientation of these thinkers is evident in the story itself.  From the left, Nan Aron argues in the story that it's wrong to think "Republican acrimony will be reduced" if the administration goes slower and lessens the visibility of nominations.  From the right, Ed Whelan, who is very much on-message, tells Savage: "On judges as on so much else, this administration seems to be much less competent than both its supporters and critics expected."  Both these statements only make sense if one assumes -- as both of these individuals do, and must if they are to maintain their influence -- that the primary goal of any administration should be to stock the judicial ranks with committed liberals or conservatives.  But, of course, the administration may think it has better things to do, or that there are better ways to think of the judiciary than as a gameboard in the culture wars.  It may even think that just because the Democrats take executive office, that does not have to mean that the left gets to run the judicial selection process.  And why should it? 

Posted by Paul Horwitz on November 15, 2009 at 10:41 AM in Paul Horwitz | Permalink


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Joe, I see your point, but I've had friends on both sides point to Clinton's consultations with Hatch as evidence of their claims. Democrats can rightly point to the fact that Clinton called Hatch as evidence of Clinton's moderate approach. Republicans point to the fact that Hatch (and later his caucus) were willing to approve Ginsburg as evidence of their deference.

Both sides have to admit, I think, that their claims rest ultimately not on the procedural dance of consultation, but on a substantive claim about how moderate or left/right Ginsburg or Roberts actually is, or actually was by all best evidence at the time of appointment. That is, no one would alter their view if Bush had gone through the motions of calling Leahy to ask about Roberts, or if Clinton had nominated Ginsburg without the call.

So, if the argument turns on whether the nominees themselves are closer or further from "mainstream," that usually bogs down pretty quickly. I know plenty of smart people whom I respect who tell me that Ginsburg is mainstream and Roberts right-wing, or that Roberts is mainstream and Ginsburg an activist blah-blah-blah. I'd have voted to confirm both, because I think both are in the "two mainstreams," and that apart from a pre-commitment to one side or the other, it's hard to make some objective case of who's more off-center. I think you can say that of Thomas, because he takes positions not joined by many others. But the Roberts positions that infuriate the left, or the Ginsburg positions that infuriate the right, or whatever, are each shared by half the judges or lawyers out there, or half the country, or whatever, so I don't see how either is so far outside the mainstream.

I agree that Thomas probably would not have had such a close vote but for the other issues, but I'm not sure he would have topped 60. Look at how close the Alito vote was. I don't accept that Alito is any more "extreme" than Ginsburg, if measured along a relative spectrum of all sitting appeals judges, or whatever, unless, again, one is committed to a benchmark that puts the center in some "objective" point that is relatively on the left of American jurisprudence.

In that view, the "safe picks" have more to do with what once WAS, but is no longer, a lagging willingness by the GOP to vote against nominees for the big court, as opposed to playing blue-slip games for the lower courts. The Sotomayor vote, unfortunately, means that they now have gone that route.

Even if you disagree with my comparison of Alito to Ginsburg, consider the comparison of Sotomayor to Ginsburg. I don't think Sotomayor's mostly-no votes from the GOP, as opposed to Ginsburg's mostly-yes votes, reflects that Sotomayor is farther out than Ginsburg. And if you at least agree with that, then that means that opposing Senate votes, at least in those two cases, reflect the opposing Senate caucus approach more than they reflect some natural indicator of the nominee's extremism/moderation or of the President's extremism/moderation in approach. And if that can be true in comparing Sotomayor and Ginsburg, it's at least a question worth asking about Alito as well, and so on.

This comment is already too long without delving into more of the merits of comparing Alito/Ginsburg, or Roberts/Breyer, etc., but I hope it at least shows that it's the real question to ask, and that the votes themselves or the consultation process don't answer the question.

Posted by: anonner | Nov 17, 2009 2:34:12 PM

As to the "GOP has played a harder-core game" argument as to Supreme Court nominations.

Ginsburg and Breyer had easy confirmations because Clinton didn't play a hard core game; Orin Hatch agreed to these nominations beforehand. Reagan/B41 did not always play hardball. O'Connor was an affirmative action pick and Souter was a moderate one, if one with some controversy on the Republican side. It probably suggested B41 was at heart something of a moderate Republican.

However, the fact that Dems at times successfully counterattacked (Bork was a trifecta on their part, many things going against him) does not erase the harder core nominations of Scalia, Rehnquist, Bork and Thomas followed by Roberts/Alito Without his youth/sexual harassment problem, Thomas probably wouldn't have had such a close vote. Compare this to the safe picks for ALL of the Democrat nominations post-Fortas.

Posted by: Joe | Nov 16, 2009 8:17:17 PM

I don't mean to re-hash the partisan debate over whose behavior has been better or worse on the judicial wars, but thought someone should challenge the apparently shared premise that the GOP has played a harder-core game than the Democrats have to bring us to this point.

I'll grant that the list of young circuit-court appointees is strong evidence, and that Clinton did not give it the same focus that Bush 43 did. But when it came to the Big Game, over the decades we got O'Connor, Kennedy, and Souter from the GOP, along with Thomas, before Roberts and Alito. Kennedy was a forced pick after the Democrats defeated Bork. Thomas squeaked by 52-48, and then Ginsburg still got a 96-3 confirmation.

I'll further grant that there are layers and layers of counter-arguments both ways about all this, but these facts do at least raise a question about who's been winning and losing the judicial and culture wars. After all, half the reason to stack the Right on the court was supposedly to ditch Roe, and last I checked, it's still on the books, and there are clinics all over my town. The battle is over whether insurance coverage will be in the health reform, which is a far cry from outlawing abortion.

Posted by: anonner | Nov 16, 2009 12:05:25 PM

And you might take the long-term perspective that the best way to avoid this kind of polarization and cool down the nomination and confirmation process in general is to put up moderate nominees. Doing so will model this kind of behavior, will eventually put up evidence that there is some value in having moderate judges, and will incidentally but perhaps importantly tend to marginalize the interest groups who place pressure on the nomination process for both parties.

I would have more sympathy for this argument if a stronger case could be made that depolarization would be successful. But given the history of nominations over the last four presidencies, it's hard to have confidence in it. Clinton's strategy wasn't all that different from Obama's. He tended to choose circuit judges who were older, on average, than Republican nominees, including no judges in their 30s. Many of his nominees were not particularly committed ideologically. But that didn't seem to have the tit-for-tat effect that the argument above anticipates. Bush II followed with eight years of the same basic Republican strategy (with some exceptions, of course, but nevertheless). Which raises the question: what makes things different this time around? Is there now more reason to think the Republican Party would favor moderates over the long run? One can argue that nominating moderates will curtail the effects of interests groups and help depoliticize the process. But the Republican strategy seems like it goes beyond specific interest groups to a deep feature of the party. The strategy now extends back through three presidencies (and 20 of the last 29 years). Recent history doesn't provide much support for the tit-for-tat approach, nor does the current positioning of the Republican Party.

Posted by: Micah Schwartzman | Nov 15, 2009 10:11:11 PM

Both great comments; thanks. Micah, perhaps a few words in response. On (1), I'm not sure the administration has to say it's a high or low priority, and I'm not sure how much the fact that some (or even many) nominations have occurred says; it just has to decide, explicitly or implicitly, that it's not worth expending as much political capital on pushing the judges through as others might wish. Mind you, that doesn't mean I approve of efforts to slow down or obstruct the confirmation process, especially without public deliberation.

On (2), again I'm not sure how much of an obligation the administration has to talk about why it's nominating moderate judges (if, in fact, it's doing so), as opposed to just doing it. In any event, as you note, some signals to this effect have been given. Also, I'm not saying we should discredit the arguments for progressive judges because some of the people who make them have a vested interest (which for me could be ideological and reputational as much as financial) in those arguments; I am saying that in asking whether Savage's story is the whole story, we might both see his story as pushing the message that these groups want pushed (which isn't to say they don't also believe it) and account for the fact that the loudest voices on these issues may not be the most representative voices.

You make some excellent and fascinating points about the age of nominees. Since I suggested that from my perspective, the Republicans are more willing to spend capital on these issues when in office, I suppose those data would be consistent with my view. It would also be consistent with my view that the administration has other priorities, since it is less likely to garner opposition if it puts up older nominees, who will have a shorter tenure and be less likely to make it to the Supreme Court. (This might well also further suggest that efforts to blue-slip or otherwise delay these nominees are even less excusable.)

Your final point is one that many will agree with -- the Aron point that if Republicans have put up more conservative nominees, the best way to win balance on the courts is to put up liberal nominees and stick to your guns on them. I will point out that from an interest-group perspective, this strategy serves the interest groups on both sides of this issue very well, and that one can note this incentive without questioning motives or being cynical. But while I think this is a legitimate point, I also think it's not the only way to look at the issue. If your interest is in having an ideological balance on the courts, then this might make sense from a short-term perspective. If you actually favor moderates for jurisprudential reasons, then you might want to put moderates on the bench regardless. And you might take the long-term perspective that the best way to avoid this kind of polarization and cool down the nomination and confirmation process in general is to put up moderate nominees. Doing so will model this kind of behavior, will eventually put up evidence that there is some value in having moderate judges, and will incidentally but perhaps importantly tend to marginalize the interest groups who place pressure on the nomination process for both parties. It is certainly a long-term goal, and in the short term Aron's views might be right, but I think it's also a legitimate perspective. Nevertheless, you make some excellent arguments.

Posted by: Paul Horwitz | Nov 15, 2009 9:13:20 PM

The administration hasn't defended its nomination strategy by saying either of things Paul thinks might explain it: (1) it has other, more important, priorities, or (2) it prefers moderate or minimalist judges. Maybe an administration can't really say (1) -- it can't denigrate the duty of seating another branch of government by saying it has more important things to do. But even if it could, that explanation just isn't plausible here, at least not with respect to the circuit courts. Obama has nominated candidates to fill more than half of the existing vacancies. Nominating circuit judges is clearly a high enough priority to research, vet, and nominate at least a dozen of them.

What about (2), the claim that the administration prefers moderates to more progressive judges? This might be true. (Toobin made this claim in his September New Yorker article on Obama's judicial nominations.) But if this is right, then the administration should say so, or perhaps it should say so more clearly. And then it should defend that policy against the obvious counter-arguments.

The most obvious response is made by Nan Aron in the Savage article (and, implicitly, by Toobin). The objection to a policy of picking moderates is that the other side hasn't followed that policy, hasn't been politically responsive to it when followed (as now), and can't be expected to follow it in the future. That strikes me as a pretty good argument.

Paul says that we should be suspicious of this argument because it's being made by people who stand to lose money and power if the administration succeeds in moving past the culture-war politics of judicial nominations. I'm not persuaded by this (rather cynical) ad hominem response either. Many progressives who don't have a financial or reputational stake in the culture wars are unhappy with Obama's nominations. Even some judicial minimalists are unhappy, given the relative age of Obama's nominees (on which I've commented here). If you want the bench to be moderate in the near future, you might want to appoint younger moderates, pragmatists, minimalists, or whatever.

A less obvious argument against Obama's post-partisan strategy -- if it really is a strategy, rather than a policy of low priority, relative indifference, or deference to senators and state bar associations -- is that it's either irrational or highly speculative. If the aim is to depoliticize the judiciary, then we're back to Aron's point. If it's to move the judiciary in the direction of minimalism, or progressive minimalism, then the strategy is premised on the assumption that the best way to do that is to appoint minimalist judges. That assumption needs defending. If Democrats appoint minimalists, and Republicans continue to appoint judicial conservatives (as many, including many Republicans, would argue they have, at least since Reagan), then the strategy may fail to move the judiciary in the direction of progressive minimalism. Instead, the judiciary becomes more conservative over time. If this is right, then nominating judicial minimalists is not the best way to achieve judicial minimalism. If your first-best theory of adjudication is minimalism, it might make more sense to pick judges who aren't minimalists but who will produce minimalist outcomes given the distribution of judges on the bench.

In any event, to persuade its supporters on the left, including those who believe in judicial minimalism, the administration has to articulate and defend its decision to nominate judges who are generally older and more conservative than many on the (even moderate) left expected. Hardly anyone expected Obama to choose judges who are, on average, five years older than the judges chosen by Reagan, Bush I, and Bush II, and who are, comparatively, far less controversial.

If you doubt this last point, consider that there have been no Democratic appointments under age 40 since Carter. Since Reagan, Republicans have appointed 17 circuit judges (and more if you count the federal circuit) younger than the youngest Democratic appointee (including 11 in their 30s). Since 1979, Democrats have nominated only 9 circuit judges under the age of 45; Republicans have nominated 42. Among the latter are many of the leading figures and rising stars in American libertarian and conservative jurisprudence, including: Kozinski, Jones, Easterbrook, Luttig, Starr, Gorsuch, Wilkinson, Alito -- all nominated in their 30s; Colloton, Ginsburg, Jerry Smith, Kavanaugh, Boggs, Kethledge, Clarence Thomas, Sutton, Posner, Pryor, Sentelle -- all nominated under 45; and McConnell, Scalia, Randolph, Chertoff, O'Scannlain, Stephen Williams, Silberman, and John Roberts -- all under 50 when successfully nominated. (Roberts was 36 when first nominated by Bush I.)

I think it's useful to see the judges listed in this way. It helps to put into perspective what a party can do when it is committed to making the judiciary a priority. The Republican Party has been very successful in this regard. Obama's critics (who mostly have been quite friendly and indeed sympathetic with arguments about political priorities) are right to wonder how his nomination strategy is either responsive to that fact, or will actually (not merely aspirationally) succeed in moving beyond it.

Posted by: Micah Schwartzman | Nov 15, 2009 4:35:10 PM

I don't know, Paul. The Savage article was about a bunch of things at the same time. You pull out one thread--the idea that Obama should be nominating futher left judges--and take issue with it. I think I disagree with you on that point. But, more importantly, I don't think it was the main thrust of the article. The main thrust seemed to be that Obama should be appointing more judges period (and pushing harder to confirm the ones he has nominated). Whether he wants strong leftwing judges to balance Bush appointees (as I would prefer) or more moderate judicial craftspeople (as you would prefer), it is not hard to identify the leading candidates in any district or state. More than anything else, the left wants him to get going with that project, so that he confirms his fair share of judges and doesn't leave the seats to be filled by some of the hardline conservative folks who might inherit the White House in 2016 (or, God forbid, 2012).

Posted by: Andrew Siegel | Nov 15, 2009 2:30:36 PM

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