Sunday, January 29

Confirmation Politics

The Senate vote on the nomination of Judge Alito looks likely to occur on Tuesday, Kerry and Kennedy's filibuster threats notwithstanding. Writing on National Review Online, Byron York predicts that few Democrats will vote for the nomination and opines that "[t]he bigger issue in the Alito nomination is the arrival of the party-line vote in the Supreme Court confirmation process."

Certainly, if one looks at recent Supreme Court confirmation history, this does appear to be a new development. (I know, developments are always new, but "this does appear to be a development" just doesn't sound right.) Of current Supreme Court justices, only Thomas's confirmation was the result of something like a straight party-line vote. The statistics are:

Stevens: 98-0
O'Connor: 99-0
Scalia: 98-0
Kennedy: 97-0
Souter: 90-9
Thomas: 52-48
Ginsburg: 96-3
Breyer: 87-9
Roberts: 78-22

During this time, Bork's nomination was rejected 58-42 and Rehnquist's elevation to Chief Justice was approved 65-33.

While the exceptions of Bork, Thomas, and Rehnquist counsel against sweeping judgment, in the last thirty years, the confirmation process has been broadly bi-partisan. That consensus, however, meant little when 22 Democrats chose to vote against then-Judge Roberts; if Alito receives even less Democrat support, the bi-partisan era may be officially over. Republicans, we can be sure, will not need much encouragement to follow the Democrats' new precedent next time a Democrat sits in the White House. As Senator Kyl has said,

It is simply unrealistic to think that one party will put itself at a disadvantage by eschewing political considerations while the other party almost unanimously applies such considerations. . . . So I say to my Democratic friends, think carefully about what is being done today. Its impact will be felt well beyond this particular nominee.

Senator Feinstein justified the new partisanship by saying that "It's a very different day and time than when Justice Ginsburg and Justice Breyer were before this [committee]. There was not the polarization within America that there is today and not the defined move to take this court in a singular direction." Overlooking the fact that "a direction" can only be "singular," is she serious? There was no comparable polarization in 1994, the year of the Contract with America and the Gingrich revolution, when Republicans swept into power on a swell of disenchantment with Clinton and the Democratic party? Clinton's average approval ratings that year were 45.8%, a smidgen below Bush's ratings last year (46%).

Anent the direction of the Court, O'Connor's replacement by Alito is hardly comparable to Clinton's replacement of White (a mixed bag, who dissented in Roe v. Wade--which, frustratingly, seems to be the only issue that most senators care about) withGinsburg (former A.C.L.U. counsel and champion of almost every position dear to the Democratic party). I couldn't care less about maintaining some mythical state of immutable "balance" on the Court, so I think that Ginsburg's nomination was every bit as legitimate as Alito's; I just wish Senator Feinstein would recognize that. She can vote against Alito for any reason she wants, but she shouldn't kid herself or the public that this nomination is qualitatively different from Ginsburg's.

Stepping back from recent history, more than two hundred years of Supreme Court nominations shows that consensus hasn't always been the rule.

Though most early confirmations were by voice vote and not roll call, so no numerical record of the vote is available, there are many examples of closely contested confirmations. Without consulting the Congressional Record, I can't say whether these close votes were partisan, but I would bet a field of green that they were. So, for example, Nathan Clifford went down to a narrow defeat in 1857 (23-26), as did Jeremiah Black in 1861 (25-26). Even earlier, John Rutledge's nomination in 1795 was scuttled by a vote of 10-14. But wait, I hear you say, is that the same John Rutledge who served on the original Supreme Court under Chief Justice John Jay? Very perceptive of you; yes it is. He also served as the Court's second Chief Justice in 1795, coming out of retirement to replace Jay as a recess appointment. The Senate subsequently declined to confirm him for a permanent seat, making him the first nominee to be so rejected.

Other close votes include Crittenden in 1828 (23-17), Taney in 1835 (24-21), Barbour in 1835 (30-11), Smith in 1835 (23-18), Catron in 1837 (28-15), King in 1845 (29-18), Walworth in 1845 (27-20), Spencer in 1845 (21-26 defeat), and Woodward in 1845 (20-29).

None of this should surprise. Senators are politicians, and politicians play politics. The real surprise is that Scalia was confirmed 98-0 and Ginsburg 96-3. In retrospect, those are truly shocking numbers. Even a cursory examination of the speeches and positions taken by either nominee would have revealed their approaches to constitutional interpretation; that the Senate either didn't know or didn't care is remarkable, particularly in Ginsburg's case, when Republicans were still smarting from the calumniation of the most qualified Supreme Court nominee in two hundred years.

For what it's worth, my opinion is that senators should adopt one of two honorable but very different approaches to Supreme Court nominations.

1. Engage in whatever amount of fact-based criticism they can while still managing to sleep the sleep of the blessed, but, once it comes to voting, go along with the majority. A unanimous Senate vote puts the permanent institution of the Court above its temporary members; it welcomes a new justice with dignity and signals to the American people that his tenure is legitimate and his opinions on the Court are to be respected as the voice of the law, backed up by the full authority of the judicial branch. This practice would be akin to the tradition in the election of certain institutional leaders by secret ballot of, after the deciding vote, holding one final vote so that the incoming leader can be welcomed by unanimous consent.

2. Vote their consciences, as they were elected to. If Senator Feinstein believes that Judge Alito will not discharge his duties as a Supreme Court Justice ought to, then she should vote "no," but she should expect Republicans to do the same the next time that a Democrat nominates an advocate of a "living Constitution." I have no problem with politics as usual.