At this writing, we do not know who President Obama will nominate to replace David Souter on the Supreme Court, and so it’s impossible to anticipate precisely how much Republican opposition his pick will meet with, or for that matter whether any Democrats will be opposed.
Nonetheless, of this much we can be sure, from Obama’s own history and prior statements as well as that of his party: Obama is highly likely to select a nominee who will do a terrible job as a Supreme Court Justice, in terms of (1) following the reasoning process that we Republicans and conservatives believe is the legitimate and appropriate way for a Justice to decide cases and (2) reaching what Republicans/conservatives would regard as the correct results in interpretiting the Constitution and federal statutes.
So, the President is likely to do something Republicans legitimately and seriously disagree with, and which will do lasting damage to the nation. How then to respond? Here, sight unseen of the nominee, I can offer two main suggestions.
I. Get To The Merits
Republicans in recent battles over judicial nominees, especially those conducted while the GOP held a strong majority in the Senate, have had an unfortunate tendency to fall back on proceduralism. That means making arguments primarily along the lines that if a candidate is “qualified,” he or she should be given a floor vote by the Senate, without getting into matters of judicial philosophy or ideology.
This is perhaps the best tactical approach if you control the White House and need to apply pressure to wavering Senators, given that there’s a fairly broad bipartisan popular consensus that is at least vaguely in favor of deferring to the President in the judicial selection and confirmation process. But as a matter of long-term strategy, it’s terribly short-sighted.
Sure, arguments about merit, like this Pejman essay, are important. Lack of qualifications was ultimately what turned me and many others who had no particular ideological reason to oppose her against Harriet Miers. But qualifications are not the core issue. Let’s say I was starting a team that aimed to win a championship, and I asked you whether LeBron James was more qualified than Albert Pujols. You could not answer that question without first asking me whether I’m playing basketball or baseball – because the two men make their living trying to accomplish completely different things.
The simple fact is that Republicans have a fundamentally different view of what judges are trying to accomplish. And so, ipso facto, a judge who is highly intelligent and experienced may be “qualified” in the abstract, but is guaranteed to perform poorly if he or she is not even trying to do the things those of us on the Right believe are the essentials of the job.
Obama has been known to say things like this in describing what a Justice should be like:
We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.
Now, empathy is not a bad thing in the abstract (although a little empathy for the unborn, the soldier, the cop, the Christian, the victim of crime or terrorism among others, might offer some balance to that picture), but in terms of putting it as the centerpiece of a judicial philosophy…well, imagine how liberals would feel if George W. Bush had said the most important thing in a judge was being patriotic or a good Christian. Just because something is an important value for people or government officials generally doesn’t mean it’s the job of the judiciary.
Republicans disagree fundamentally with the view that “empathy” is a Justice’s primary job. Instead, we believe that the job of judges is, at its core, to recognize that all legitimate exercises of judicial power derive from the consent of the governed. That job is carried out by figuring out what exactly the people – acting directly or through their elected representatives – agreed to when they enacted the Constitution and federal statutes. Making that determination doesn’t decide 100% of the issues presented to the Supreme Court, of course, but it’s the bedrock foundation without which the Court’s exercise of power is fundamentally illegitimate, and the Court must decide that question, and determine if it disposes of all the issues at hand in a case, before it proceeds to any other question. But Obama and his allies simply refuse to be bound by the need to limit themselves to such constraints on their power.
The Republican position has a lot of popular appeal, much more than the competing view of judicial imperialism (that the judiciary should stop the elected branches from doing things that violate the judges’ moral and public policy views) and, worse yet, transnational progressivism (i.e., the notion that American law should conform and ultimately subject itself to European/Canadian-derived “international” law without regard to the consent of the American people). Republicans have a winning philosophical argument on the merits, one that goes to the very core of our continuing status as a democracy; we should not fear to make it.
Perhaps the best evidence of the enduring popularity of judicial conservatism is the other side’s perennial and often-desperate attempts to blur this distinction and appropriate its language. Justice Stevens has been known to claim that he is a conservative, which is the highest tribute that can be paid to judicial conservatives: a man who is closing in on the status of oldest and longest-serving Justice prefers the conservative label to one that would distinguish his jurisprudence from that of his critics. For a recent example, Gordon Silverstein at the New Republic peddles the myth of Justice Souter as a “real” conservative, which he frames as adherence to judicial precedent but by which he really means one who never makes liberals unhappy. Orin Kerr explodes that myth. A sample:
[T]he two Justices on the current Court who vote most frequently with each other are often Justice Souter and Justice Ginsburg. Looking at the current Supreme Court Term, for example, the Souter/Ginsburg pairing is the most common: They have fully agreed with each other 88% of the time. The next closest pairings are Scalia/Roberts at 83%, Roberts/Alito at 81%, and Thomas/Scalia at 79%.
This is even before you consider the numerous occasions on which Justice Souter has not adhered to precedent, ranging from recent reversals on the 8th Amdment to Lawrence v. Texas, just to pick a few of the more sensational examples.
Putting the argue-the-merits approach into practice, of course, doesn’t mean ignoring short-term tactics entirely. Certainly, we should want to win the battle ahead. But tactics are not everything, and the odds against victory are prohibitive: even if Obama picks a poor nominee who generates significant Democratic opposition, the fact remains that he has close to 60 votes in the Senate; he’ll get some choice of his eventually, whether it’s his first choice or not.
Thinking strategically, therefore, Republicans and conservatives should prioritize, not immediate tactical advantage, but long-term victory, by focusing on educating the public about how Obama’s nominee departs from the proper and legitimate interpretation of the law and how the visions of the two sides differ on this issue. Elections have consequences – and the loser of the election should not hesitate to point out what those are.
II. Be Willing To Apply The Obama Standard
Many of us on the Right have long argued, on principle, against the filibustering of judges. Personally, while I’m comfortable with using the filibuster to delay floor votes on a nominee to ensure the gathering and dissemination of sufficient information about the nominee, I regard it as an important practice for the Senate, as a matter of courtesy and tradition, to give the President an up-or-down vote on all his nominees.
But let’s face it: we had a long national argument on that point, and we lost. The other side didn’t adhere to that view of deference. In the 2008 election, we nominated a candidate who voted in favor of every SCOTUS nominee during his career, ranging from Bork to Ginsburg; the Democrats nominated a man who participated in numerous filibusters of appellate nominees, voted to filibuster Justice Alito, and voted on the merits against the two SCOTUS nominees (Roberts and Alito) to come to a vote during his brief tenure as a Senator. Orrin Hatch led the way in convincing Senate Republicans to give a fair vote and deference to the selection of Justices Ginsburg and Breyer, and left-wingers are still using that against Republicans. Republicans should make explicit that they will give Obama’s nominees only so much deference as he himself was willing to give.
Jeff Sessions, himself at one time a victim of Democratic obstruction in the Senate back when he was nominated for a federal appellate judgeship, has signalled that the GOP is not necessarily gearing up for a filibuster. I don’t have a problem with this statement. First of all, it’s traditional to at least profess a willingness to keep your options open. Second, as Karl Rove points out, Senate rules currently require that any nominee win at least one vote of the minority party on the Judiciary Committee, and with the loss of Arlen Specter from the minority, the pickings could be slim even without a filibuster. And third, there’s a lot on the table in the Senate; if Republicans can accomplish their mission of educating the public, and if they are prepared to vote against the nominee on the merits, there may not be a point in a fruitless filibuster vote.
All that said, Republicans shouldn’t rule out the filibuster. There comes a time when unilaterally standing on a principle the other side doesn’t respect, out of courtesy and tradition, is just self-defeating. And in the long run – maybe not now, given how close the Democrats are to 60 votes, but sooner or later – Republican resistance could decide the Democrats on changing the rules themselves to make it easier to get judges confirmed. As with other efforts to rely on brute force, it is better to compel this to be done openly, in full view of the public. And new rules – unlike courtesy or custom – are something Republicans can use down the road to re-establish the balance they wanted all along.