Posted on 09/04/2003 3:47:38 PM PDT by pogo101
Withdrawal: What Does Estrada's Decision Mean?Introduction
Miguel Estrada has withdrawn from consideration for a position on the United States Court of Appeals for the District of Columbia Circuit. (See Byron York for why!) His withdrawal is the end of a long story that began with Estrada's nomination and speculation that he was a leading candidate for the first Supreme Court vacancy. In ordinary political times, Estrada would have been quickly confirmed. He is well-qualified for judicial office, and his public record reveals no disqualifying defects of character or intellect. Because both the President and a (bare) majority of the Senate are Republican, history suggests that a qualified judicial nominee would eventually be confirmed, unless (1) the Democratic minority could peel off some Republican votes, or (2) a powerful Senator was opposed to nominee as a result of a personal or political grudge. But past was not prologue. Instead, the Democratic minority adopted a filibuster strategy, and the Republican Majority was unable to muster the Democratic votes necessary to achieve the total of 60 required for cloture. Republicans floated a number of options for breaking the deadlock, notably (1) routine use of the recess appointments clause, and (2) the so-called nuclear option, the use of parliamentary maneuver to cut off debate with a simple majority. Although the Republican leadership gestured toward the nuclear option, in the end the Democrats prevailed and Estrada withdrew.
What are the lessons of the Estrada nomination and withdrawal?
It is, of course, too early to tell. The dice are not yet cast; the Rubicon is not yet crossed. The real meaning of Estrada will not be clear until and unless there is a Supreme Court vacancy in similar political circumstances. One case does not make a line of authority, and one defeated nomination does not constitute the custom of the Senate. Nonetheless, even at this early state, the Estrada withdrawal suggests that transformational processes are underway. The remainder of this post is my reading of the tea leaves.
The Role of Ideology in Judicial Selection
First and foremost, the lesson of Estrada is that political ideology is out of the closet as the primary factor in battles over judicial nominees. Ideology has ebbed and flowed as a factor in the judicial selection process. At some points in American history, ideology has played the leading role;especially when some great political controversy of the day was likely to be resolved by the Supreme Court. At other times, character and judicial philosophy, rather than political ideology, has dominated the judicial selection process. But the role of political ideology has never been more prominent or explicit than it has been during the Presidency of George W. Bush. And in large part, this prominence is due to Senator Charles Schumer, who has worked to rally the Democratic Senate Minority around the political ideology flag. Schumer fired the opening salvo of his ideological offensive in an editorial in the New York Times. Here is some of what he wrote:
For one reason or another, examining the ideologies of judicial nominees has become something of a Senate taboo. In part out of a fear of being labeled partisan, senators have driven legitimate consideration and discussion of ideology underground. The not-so-dirty little secret of the Senate is that we do consider ideology, but privately.
Unfortunately, the taboo has led senators who oppose a nominee for ideological reasons to justify their opposition by finding nonideological factors, like small financial improprieties from long ago. This ''gotcha'' politics has warped the confirmation process and harmed the Senate's reputation.
And Schumer continued:
[S]ince Judge Robert BorkÂ’s nomination was defeated in 1987 largely because of his positions on abortion, civil rights and civil liberties, ideology has played more of a behind-the-scenes role in nomination hearings. It would be best for the Senate, the presidentÂ’s nominees and the country if we return to a more open and rational debate about ideology when we consider nominees.
Whether Schumer's elevation of ideology would succeed or fail was an open question when he wrote for the New York Times two years ago. The first lesson of Estrada is that Schumer has won the battle within the Democratic Senate Caucus. Ideology is now on the table. Prediction is perilous, but now that the Democrats have opened the door to open ideological warfare, it does seem unlikely that Republicans will choose to remain on the stoop if and when the tables are turned and they find themselves able to block a qualified Democratic nominee of good character whose ideology they find objectionable.
Why Was the Republican Leadership Unable to Bust the Filibuster?
It's About the Votes Stupid
The best way to bust a filibuster is to get the 60 vote necessary for cloture. The Republicans simply didn't have the votes. Although Republicans have a bare majority in the Senate, when push comes to shove there are a few Democrats willing to vote with the Republicans on judicial nominees. But when it came to Miguel Estrada, the votes were simply not there. There arenÂ’t enough conservative Democrats. The moderates who might be persuaded to vote for cloture on a moderate Republican nominee were convinced that Estrada was not such a moderate.
24/7 Won't Work
The contemporary filibuster is a polite affair. Charles Schumer does not talk through the night, bleary eyed and exhausted. Why not? Couldn't the filibuster be broken if the Republicans forced the Democrats to go 24/7? No. Because the 24/7 option actually gives an advantage to the minority. Why? In order to force a 24/7 filibuster, the majority must maintain a quorum at all times, but the minority need only have one Senator present to maintain the filibuster. So 24/7 both exhausts and distracts the majority, while allowing the minority the opportunity to rest and carry on their ordinary business. No modern filibuster has been broken by the 24/7 option. For more on this, see my post entitled Update on Filibusters.
Recess Appointments
If 24/7 is doomed, what about recess appointments? The President has the power to make recess appointments while the Senate is in recess. Can't the President simply use the recess appointments power to circumvent the filibuster? The problem with recess appointments is that they expire at the end of the next term of the Senate. This makes recess appointments unattractive to nominees, who may well find a temporary judicial office an unattractive career option. Lawyers are unlikely to want to spend a year or more away from their practice without the prospect of life tenure. Those who already hold judicial office may not wish to give up the security of the current seat for a temporary appointment. In an influential op/ed, Randy Barnett suggested that this problem might be overcome by appointing law professors or senior judges who are nearing retirement, but this suggestion does not seem to have moved President Bush. For my extended analysis of the recess appointments option and its long-term implications, see my post entitled Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts.
No Nukes
What about the parliamentary option? Senator Robert Byrd pioneered the use of parliamentary maneuver to limit the filibuster. His technique is simple. As applied to the filibuster of a judicial nominee, it might work like this. A Senator moves to close debate on a judicial nominee. A majority votes for cloture. The chair rules that the motion has passed. The minority objects to the decision of the chair. Under Senate procedure, the chair's ruling can be appealed to the Senate, but is sustained if a majority votes to uphold the chair. Viola! The filibuster is over. That's so simple. Why hasn't the Republican leadership done that? Because the Minority can retaliate. The rules of the Senate require the voluntary cooperation of the minority for the Senate to carry on its ordinary business. If the minority were determined to against a Republican first strike, they could bring the business of the Senate to a screeching stop simply by calling for a roll-call vote on every unanimous consent motion. Of course, the majority could escalate further, by changing the Senate Rules to permit the leadership to control who takes the floor. But this would fundamentally transform the nature of the Senate. It would make the Senate function like the House, which at the level of parliamentary procedure is essentially an oligarchy. This change would diminish the power of every Senator except those who were high in the Republican leadership. For an extended analysis of these issues, see my post entitled Breaking the Deadlock: Reflections on the Confirmation Wars.
The Flip Side: Democratic Acquiescence
The story that I have told so far suggests that the Democrats are in the drivers seat, but that would be the wrong conclusion to draw. The Democrats can block nominations, but they cannot nominate. It is true that in theory the Democrats could try to block every right-wing Republican nominated for judicial office with the aim of forcing the President to nominate some Democrats and lots of moderate Republicans, but they have not pursued this tactic. Why not? I suspect that the answer has to do with the costs that this move would impose on the Democrats. If the Democrats tried to filibuster each and every Republican nominee, they could no longer argue that they were only opposing the most extreme nominations. The federal bench would begin to depopulate and the Republicans would be able to argue that Democrats were crippling the courts for partisan reasons. Moreover, mass filibusters would change the political stakes. When the Democrats are only filibustering a handful of nominees, the costs to Republicans of mass recess appointments or the nuclear option exceed the political benefits. But if the Democrats attempted a mass filibuster, that equation might change, with the consequence that Democrats would lose the ability to block any nominations. The reality is that the Democrats are allowing most judicial nominations to go through, that most of those who are confirmed are conservative Republicans, and that some of these, like Michael McConnell, are both very conservative and extremely able. For more on the role of ideology in judicial selection, see my post entitled Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy
Is the Filibuster of Judicial Nominees Now a "Custom of the Senate"?
So the filibuster of Estrada seems to have succeeded. Here is one possible implication of withdrawal: the question whether the filibuster of judicial nominees is permitted by the customs of the Senate may now be settled. Although there was a bipartisan filibuster of Abe Fortas, that case was both unique and distinguishable from the Estrada case on the ground that a majority never attempted to break the Fortas filibuster. In the Estrada case, there were several cloture votes in which the motion to close debate gained a majority but fell short of 60 votes. Because the leadership did not employ the nuclear option, Democrats can now argue that it is now clear that the customs and rules of the Senate permit filibusters of judicial nominees. My take is that this conclusion is not yet set in stone. Estrada withdrew. The fight did not go to the bitter end. And the Republicans have not yet tried a variation on the nuclear option. The Senate Rules can be amended, and hence the rules could be amended to modify cloture in the case of judicial nominations. One proposal is for a gradually decreasing majority. The first cloture vote would require 60 votes, but then the number is reduced on subsequent votes until it reaches a bare majority. If a delay was required between votes, this would essentially create a time-limited filibuster. Of course, a change in the rules can itself be filibustered. But that is where the nuclear option comes back. The chair could rule that the rule which requires 66 votes to close debate on a rule change does not apply to itself. That is, the chair could rule that a simple majority can close debate on a motion to change the cloture rule as it applies to rule changes. Tricky, isn't it? And in fact, a gaggle of conservative law professors, lead by Doug Kmiec, have argued that the constitution requires that a Senate majority be able to change the cloture rule. I'm not sure Kmiec is right, but I'm not the judge of this issue. And neither are the courts. When it comes to this issue, the highest constitutional court is the Senate itself. Here is the bottom line. Unless the Senate leadership pushes hard for a rule change, it looks like the filibuster of judicial nominees has been entrenched as consistent with the customs and rules of the Senate.
The Shoe that Did Not Drop
Confirmation wars were big news in the Spring, but they have faded from the front pages with the lazy days of summer. Why? Because of the shoe that did not drop. Which shoe? Why William Rehnquist's shoe, of course. In the Spring it looked as if the Estrada skirmish in the Senate was just a warm up for the mother of all confirmation battles, which would have been triggered by a resignation from the Supreme Court. But the vacancy never materialized? Why not? Who knows! One factor may be the confirmation wars themselves. Another factor may be the BCRA case, to be argued next week--there is some indication that Rehnquist has a strong interest in the issues raised by the constitutional challenge to McCain-Feingold. Whatever the reason, the shoe did not drop. And when the shoe did not drop, the stakes did. When the Estrada, Own, and Pryor filibusters were viewed as the early skirmishes in the war over the balance of power on the United States Supreme Court, the stakes were very high indeed. But if you think of the stakes as three seats on the Courts of Appeal, high political drama is transformed into low political farce.
The Downward Spiral of Politicization or Equilibrium?
If you have followed this blog since the early spring, you know that I have been arguing for some time that the confirmation wars are symptomatic of a downward spiral of politicization. I don't want to exaggerate. There have been intensely political struggles over the judiciary in the past, but both the public record and my private conversations with those directly involved convinced me that the trend for the last two decades or so has been towards increased politicization of the judicial selection process. The whole story includes filibuster of Abe Fortas, Democratic defeat of Carswell, Haynsworth, the Bork and Thomas nominations, Republican obstruction of Clinton's nominees, leading to the filibuster of Estrada, Owen, and Pryor. Now that Estrada has withdrawn, we might ask the question: have we reached the bottom? If we have, then it seems to me that the next move would involve some resolution of the remaining controversial nominations. Perhaps, a deal might be struck, involving some horsetrading. Owen and Pryor withdraw, but Janet Brown is confirmed--or vice versa. Perhaps, the Republicans soldier on, with nominations dying a natural death at the end of the Senate's term. This pattern could continue until the balance of power or the control of the Presidency shifts. Most nominations are confirmed, but the most skilled and ideologically conservative candidates do not make it through. But there is another possibility. We may not have reached the bottom of the downward spiral of politicization. If the Republicans intend further escalation, it is obvious that they are waiting for some triggering event. What might that be? Perhaps, a filibuster of Janet Brown. Perhaps, the next Supreme Court vacancy. On the question whether we have reached a stable equilibrium in the judicial selection game, I simply do not have any definite opinion other than, it is too soon to tell.
The Path Not Taken
The judicial selection process has become politicized. If that trend continues, it seems likely that judges will be selected on the basis of their political ideology rather than their character. In current political circumstances, this means that judges will be come from a band that starts in the political center and ends well short of the far right. If the Republicans were to gain 60 votes in the Senate (likely 55-56 Republicans plus 4 or 5 conservative Democrats), then we would expetct a shift to the right. If the Democrats were to regain control of the Senate, we would expect a shift towards the center. You can imagine the remaining permutations. But here is the thing about ideological selection of judges. If judicial selection is all about political ideology, there is a cost to be paid. Ideological judges are legal realists. They vote on the basis of their political preferences and not on the basis of the law. Ideological judges can be highly skilled in the craft of judging, but this is unlikely. If you see the law as a mere instrument of power, you are unlikely to care enough about the law to spend the long hours required to achieve true mastery of intricate and interconnected web of legal doctrine. Moreover, ideological judges are not likely to possess what I call the judicial virtues. And in particular, ideological judges lack the virtue of justice--the dispositon to decide according to law and to avoid the temptation of using judicial power to remake the law as one wishes it to be.
The path not taken leads to legal formalism. There is an alternative to the selection of ideological judges whose political orientation reflects the balance of power in and between the Presidency and the Senate. That alternative is to select judges who are legal formalists, who decide the cases before them on the basis of the rules laid down. If political conditions are right, then both parties have good reasons to support the selection of formalist judges. Of course formalist decisions have political implications, but the political tilt of formalist judges is simply a reflection of the political history that leaves its traces on the Constitution, statutes, and precedents that a formalist judge respects and attempts to follow in good faith. And formalist judging produces a very great benefit--the rule of law. For more on this, see my post titled A Neoformalist Manifesto.
Can the Bell Be Unrung
But is it too late? Have we moved so far down the spiral politicization that it is impossible to turn back? At this stage in the game, it seems unlikely that Democrats would trust a Republican nominee who presented herself as committeed to the rule of law. And given the Republican perception that the Democrats have unfairly escalated the confirmation wars, it seems unlikely that Republicans will forgo the opportunity to attempt to find confirmable candidates for judicial office who are committed to the political agenda of the right. Charles Schumer rang the bell and its peel has been heard far and wide. Both sides now seem committed to a judicial selection process that concieves of the federal judiciary as the third political branch. Not the least dangersous branch, but the most dangerous branch. The branch that carries out a political agenda with the security of life tenure and the power of final decision about Constitutional questions. Can that bell be unrung? I wish that I could say "yes" with confidence, but alas, I cannot.
For the most part it has not been Conservative Judges and Justices who have turned the judiciary into a polictical organization and the "most dangeous" branch of government. It wasn't conservative justices who said that "No state shall .. deny to any person within its jurisdiction the equal protection of the laws" meant that it was OK to do so for a "good cause" or at least a politically correct one. Nor was it conservative justices who took away the power of the states to define what constitutes a crime in their states. And that's just in the last session of the Supreme Court. It certainly hasn't been "strict constructionist" judges that have declared that "right of the people" means "right of the National Guard" (not even the right of National Guardsmen!).
It is best at this point that the Senate Republicans "go nuclear" for the remaining held up judicial appointments. That way, the decks are absolutely clear for the next Supreme Court nomination -- which will come no later than June, 2004, perhaps earlier.
John / Billybob
The Democrats in the Senate (Zell Miller and John Breaux sometimes excepted) are a cancer on the body politic. Since they cannot be removed by surgery, they need to be isolated and attacked. Dr. Bill Frist should have gotten that point months ago. He should do it now, or risk being consigned to the ashheap of history like Trent ("Vacant") Lott.
John / Billybob
Were Bush ever willing to get tough with the Senate I'd suggest Bush might be just as happy it turned out this way. He's picked up an electoral hook into the Hispanic community in next year's election and he's made the Gonzales appointment that much more certain to be both made and confirmed. Since Bush never goes to the mat with the Democrats, however, I have to guess he just doen't care as much as I think he should - on many counts.
The proper use of the nuclear option is tactical, not theater. It can and should be used ONLY to eliminate the filibuster as applied to judicial nominations and no other subject. That way, judicial confirmations will go back to what the Constitution requires -- majority vote only. And all other activities of the Senate will continue as before.
John / Billybob
You are so right! I am sooo furious! Our country has been hijacked by liberal socialists and we just have to sit here and take it!!!!
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