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Professor Jack M. Balkin
Yale Law School

On February 16, 2003, in a perverse commemoration of the birthday of Rev. Dr. Martin Luther King, Jr., President George W. Bush made a recess appointment to the Fifth Circuit Court of Appeals to Charles Pickering, a Mississippi judge. Pickering had been twice nominated by President Bush to the Fifth Circuit. The first time, when the Democrats controlled the Senate, he was turned down by a vote of the Judiciary Committee, due to doubts about his views on race and civil liberties. After the Republicans won control of the Senate in the 2002 mid-term elections, President Bush renominated Pickering. Senate Democrats, now in the minority, successfully filibustered his nomination, which they have done in a handful of Bush nominations. (It is worth noting that the vast majority of the President’s judicial nominations have been confirmed). Filibusters of Supreme Court Justices have occurred in the past, but filibusters of lower court judges are unprecedented. In response, Bush gave Pickering a recess appointment, meaning that he will be able to serve as an Article III judge until the next session of Congress begins in January 2005. Recess appointments of judges also are not unknown, but most often they have occurred in situations where it was widely expected that the candidate would eventually win confirmation. That was not true in Pickering’s case. His first nomination had already been defeated.

Looking at this series of events, many people now think that the judicial confirmation process is broken. I disagree. There is nothing particularly wrong with the judicial nomination process. There is something deeply wrong with American politics. The lack of statesmanship in the selection of judges is merely a symptom of that larger malady. Reform of the judicial confirmation process might be a good idea, but it will not cure the deeper problem.

For the same reason, I think it particularly unhelpful to assume that one can solve the problem by engaging in dueling quotations from the founding period about the proper roles of the Senate and the President. On this particular question, the Founders can be of little help. They did not believe that there would be a party system in the United States, and their imagined notion of the Presidency, as well as of the Judiciary itself, was far different from the reality of those institutions today. Offering quotations from the Founders about the power to advise and consent is the lawyer’s familiar method of cloaking political disputes in legal forms, avoiding deep conflicts of value by anodyne appeals to superficially neutral questions of judicial and historical interpretation.

Above all, I do not think that the problems with the confirmation process represent a particularly legal problem that can be assessed or resolved through legal argument. They is, rather, the outgrowth of a larger political problem that has been filtered through the Constitution’s system of separation of powers. The constitutional system of checks and balances was designed to deal, however awkwardly, with situations in which enlightened persons would not be at the helm of government, for eras when ideologues and political opportunists would overwhelm the best efforts of statesmen. Such an era is ours today. The contemporary judicial appointments process is indeed unpleasant. But that is what a system of separated powers produces in times of partisan bullying and political polarization.

The causes of the current conflicts over judicial confirmations are many; their effects have culminated over time. The first is a deep background condition: the profound change in the role of courts since the founding era. Following the Civil War, the Republican Party began to delegate policy making to the federal judiciary in order to promote a policy of economic nationalism. To this end, Republicans greatly expanded federal jurisdiction and stocked the federal courts with their ideological allies. (In fairness, the practice of packing the courts to promote a policy agenda goes back even further, to the Federalist Party’s Midnight Judges Act.). In the years that followed, the degree of delegation increased even further, and today judges engage in a wide variety of policy making through statutory and constitutional interpretation.

Thus, since at least the latter half of the nineteenth century, the political branches have viewed the federal courts as an important device for supporting and furthering their own policy initiatives and entrenching their favored values, making full use of the fact that federal judges are life-tenured. The delegation of policy making to judges has ramified and expanded over the years, so that it is almost impossible to imagine returning to a system in which judges do not formulate significant amounts of policy through the lawyerly forms and practices associated with deciding legal cases. Both Democrats and Republicans, liberals and conservatives, have been complicit in this historical process of delegation. Both have viewed the courts as important lawmaking bodies and both have seen the courts as an important prize to capture.

Americans are deeply ambivalent about this fact. They both like it and don’t like it; they both know it to be the case and repeatedly deny it to themselves. Americans expect that judges will rule according to law and not according to judges’ ideological predilections. At the same time, the public wants judges to rule in ways that reflect the public’s own values and political beliefs. In short, what the public wants are decisions according to law that correspond to their views and their political ideals.

Because courts play an important policy-making role, politicians of both parties have repeatedly tried to stock the courts with their ideological allies, a process that Sanford Levinson and I have called “partisan entrenchment.” Different administrations have pursued strategies of partisan entrenchment to different degrees. Roosevelt was more interested in partisan entrenchment in the federal judiciary than Eisenhower was; Richard Nixon focused on changing constitutional norms through judicial appointments more than did Harry Truman. However, the contemporary Republican Party—currently dominated by a coalition of economic, religious and social conservatives and by the party’s western and southern wings—has been particularly keen on taking control of the courts to promote its favored constitutional values. Since Ronald Reagan’s presidency, partisan entrenchment has been a key goal for Republican presidents. Because the public pays considerably more attention to Supreme Court appointments, partisan entrenchment has been more successful for lower court appointments than for Supreme Court appointments. The basic tendency of Republican Presidents has been to campaign in the center and, once in office, to delegate the judicial appointments process to the most ideological elements of the party.

It is often remarked that the appointments process has become contentious because judicial decision-making has become heavily politicized and politicians are merely responding to this fact. There is truth in this remark, but it is also historically naive, for it assumes that what people call the “politicization of the judiciary” has not occurred with the blessing of the political branches. Judicial decision-making is politicized not because judges are power hungry ideologues who grabbed power while decent politicians were looking the other way, but because the delegation of policy making to judges also serves the interests of politicians and the two major political parties.

It is also a mistake to understand the current controversies over judicial appointments as a struggle between contrasting judicial philosophies of original intention on the one hand, and living constitutionalism on the other. Rather, what is at issue is which direction constitutional values will be articulated and what sorts of policies will be implemented. At stake in struggles over judicial appointments is the long term development of constitutional norms. Partisan entrenchment in the judiciary—whether by liberals or conservatives, is, and has been for some time, one of the most important methods of constitutional transformation. Most constitutional change occurs not through Article V but through judicial interpretations under Article III, which, in turn, often respond to changing constitutional values in American politics. The success of Democratic partisan entrenchment in the 1930's and 1940's produced the New Deal revolution; the success of Republican partisan entrenchment in the 1980's and 1990's produced the conservative jurisprudence associated with the Rehnquist Court.

Both parties understand that what is at issue in judicial appointments is the construction of constitutional norms and the enactment of important policies in many different areas of law. That is why judicial appointments matter considerably, and that is why the parties fight over them so heatedly. People often point to the Bork nomination as the watershed moment when appointments matters became ugly and contentious. It is true that the Bork nomination represented a sea change in the lobbying efforts over judicial nominations. But that is in part because by 1987 it was understood by both sides that Supreme Court appointments mattered greatly in the formation of policies that, in turn, mattered greatly to the existing party coalitions. Conversely, when party coalitions are formed differently, Supreme Court (and lower court) appointments tend to matter much less. One important reason why judicial appointments have become so contentious is that the two major political parties have reorganized since the 1968 election and have become more ideologically coherent and homogeneous.

If tensions over judicial appointments arise from the fact that judges are delegated important policy making functions under the guise of legal decision-making, one obvious solution would be to insist that henceforth judges cease making policy through legal decisions, and instead devote themselves sincerely and wholeheartedly to the interpretation and enforcement of the law. Unfortunately, this is a fool’s errand. It assumes a false dichotomy between policy making and legal reasoning that does not adequately describe judicial practice in the most controversial and contentious areas of law about which politicians care most. Moreover, it assumes that (some) judges currently and self-consciously understand themselves to be policy actors. They do not. The self-understanding of the vast majority of judges, both liberal and conservative, is that they are already engaged in interpreting and enforcing the law as they best understand it rather than serving as mere policy making adjuncts of the political branches. To most judges, ideological decision-making is what other judges do. The judiciary makes—and always has made—policy through the application of the forms and practices of legal argument and legal interpretation, not outside of them. Nor will the wholesale adoption of a particular judicial philosophy of interpretation, like originalism or stare decisis, alleviate this feature of contemporary judicial practice, for devotes of originalism and stare decisis have shown themselves to be particularly adept at using these methods to promote particular ideological outcomes.

In any case, the policy-making role of the judiciary is only one factor in the current controversy over judicial appointments. It is, as I have said, a deep background condition of American constitutional politics that has been in place for some time. What then explains the current state of escalation over judicial appointments? To answer that question we must look elsewhere: to the structure of the party system itself.

The composition of the country’s two major political parties has changed significantly in the past twenty-five years. Each has become increasingly ideologically coherent. Since Reagan’s Presidency the Republican Party has been transformed into a genuine social movement party, dominated by its most conservative members. The energy and enthusiasm of the reformulated Republican party has brought it political success, but also political overreaching and partisan bullying. The party of Newt Gingrich, Tom DeLay, and Karl Rove is not a party of statesmanlike compromise; it is a party with a ideological mission that demonizes its opponents and seeks to crush them underfoot. As Grover Norquist has memorably put it, Republicans should view bipartisanship as an opportunity for date rape. The Democrats, after a period of feckless disarray, have only recently begun to give back as good as they are getting.

The election of 2000 exacerbated the tensions in American party politics, and, in particular, the fight over judicial confirmations. In the view of many Democrats, the election of 2000 was illegitimately concluded. Five conservative Justices on the Supreme Court handed the Presidency to the Republican candidate, George W. Bush who, in turn, had the power to restock the judiciary in ways more to his liking. The Supreme Court’s poorly reasoned decision in Bush v. Gore was particularly offensive to Democrats because the judiciary appeared to be engaged in judicial bootstrapping: Instead of the President appointing the Justices, the Justices appointed the President, who then was in a position to appoint more judges and Justices whose ideology matched their own. Bush v. Gore represented not the ordinary case of partisan entrenchment, but the far more disturbing possibility of judicial self-entrenchment.

To many Democrats, the election of 2000 was a traumatic event in the history of American democracy, and the unfairness of the election of 2000, whether or not spoken of directly, haunts the current controversies over judicial appointments. It has given Democrats a rallying point, a reason to fight back in response to a deeply felt sense of injustice and injury.

Even putting the legality of the 2000 election to one side, it is uncontroversial that the contest was extremely close. President Bush actually lost the popular vote, while his party took control of both houses of Congress by razor-thin margins. (The Republicans briefly lost the Senate in June 2001 when Jim Jeffords became an independent and then regained control in the 2002 elections). Conservative Republicans also controlled the Supreme Court by a 5-4 majority.

The 2000 and 2002 elections thus produced a remarkable political mal-apportionment in the United States. Although the electorate seemed divided almost exactly in half, all three branches of the government were controlled by one party, which was, in turn, dominated by its most conservative wing. The Republicans had won what I like to call the “constitutional trifecta,” a configuration in which all of the branches are moving in the same direction, and the separation of powers no longer blocks political change.

Periods when one party wins the constitutional trifecta are infrequent in American history after the 1820's. They normally indicate that one party truly dominates popular opinion. Thus, the party is able to promote its favored goals relatively unhindered in a context of widespread popular support. That does not, however, describe the present moment. The country remains profoundly split, and the President himself has proved to be a divider, not a uniter. Instead of conceding the deep divisions of the country and appeasing those who doubted his legitimacy, President Bush governed as though he had won the presidency decisively. He pushed a very conservative agenda both in legislation and administrative decision making. In judicial appointments, the President made no concessions, nominating scores of highly ideological candidates favored by his party’s conservative wing.

From the standpoint of pure power politics, this strategy made perfect sense. Given that the Republicans held all the levers of power, why compromise? No one knew how long the Republicans could retain the trifecta; it was far better to get things done while they could still be achieved. Compromise might be perceived as a sign of weakness, or an acknowledgment of dubious legitimacy, or both. Compromise would also offend the views of the ascendant party’s base of fervent conservative supporters. Facing these conditions, the President shrewdly reasoned that his best strategy was to push conservative policies without apology, with the goal of convincing the American people that his way was the right way (in both senses of that word). As fate would have it, Bush’s approach was greatly assisted by the terrorist attacks of September 11, 2001. The attacks—and his response to them—cemented his political legitimacy and allowed him to present himself as a strong, decisive, leader; this, in turn, helped justify his distaste for compromise.

Although Bush’s strategy of unapologetic political confrontation made perfect sense, it also had hidden costs. One party rule in a deeply divided country is a mal-apportionment of political power. It shuts out the voice of half the nation. Such an imbalance will make itself felt eventually, whether in subtle or more overt ways. The fight over judicial appointments is one of them.

In the contemporary political landscape I have just described, virtually the only way that the minority party can offer any effective opposition is through the cloture rules of the Senate, where the Democrats still hold more than 40 votes. Not surprisingly, the Democrats have attempted to use this one remaining lever of power to attempt to force the Bush Administration to compromise and nominate more moderate judicial candidates. However, the President, who heads a disciplined and ideologically coherent party, has steadfastly refused to budge. His view is that compromise is unnecessary unless one will have to pay a significant price for intransigence. Since there is little more that the Democrats can do to oppose him, the President has effectively told them to stick it. The result has been that the Republicans have largely gotten their way on judicial appointments. Democrats have picked their battles carefully, employing filibusters in only a handful of cases. Both political parties judge, correctly, that they will pay relatively little short run political cost for failing to come to an accommodation. And so they do not compromise.

Although filibusters for lower court judges are unprecedented, they are a fairly predictable response to the political circumstances we now find ourselves in. The question was not whether the Democrats would threaten filibusters, but how often they could afford to carry them out. The answer is, not very often, given the political costs of multiple filibusters and the need to keep their own ranks in the Senate together: For some time now, the Democrats have been considerably less disciplined than the Republicans, whose degree of partly loyalty is a thing to marvel at.

Although there has been considerable hand-wringing over the use of filibusters in the judicial appointments process, it is a natural consequence of the current mal-apportionment of political power in Washington, and the insistent refusal of the President to offer any hint of compromise on judicial nominations and to offer even slightly more moderate candidates. If the rules of the Senate were changed so that the Democrats could no longer use the filibuster, they would not be able to mount the same degree of opposition, and even the most extreme judicial nominations by the Republicans would sail through easily. But that would not change the more basic problem—one-party rule in a deeply divided country in the wake of a deeply controversial election. It would be somewhat like dulling the pain receptors in a patient and pronouncing him cured because his body was no longer able to register any discomfort.

The present constellation of political forces in the United States will not remain fixed. It will change; the only question is how. The Republicans could become a genuinely majority party in the next few years, thus squelching the remaining signs of Democratic opposition. The President and his party could lose ideological steam and begin to compromise—unlikely, given that their success up to now has come through an energetic insistence on having their own way. Or the Democrats could regain control of the Senate and force the Republicans to make concessions. Finally, if the Democrats regain the White House, one can expect that Republican leadership in the Senate will demand compromise as well, and if Bill Clinton’s Presidency provides any example, they are likely to get it. If any of these things happens, the current unpleasantness over judicial nominations will recede into history. None of these changes, however, would necessarily make the character of contemporary American politics less mindless, less bellicose or less poisonous. Make no mistake: our country, our democracy, is in deep trouble. Yeats’ diagnosis of his own time is equally true of our own: The best lack all conviction, while the worst are full of passionate intensity. The cacophony surrounding judicial confirmations must not distract us from the deeper perils of our current condition.

Jack M. Balkin is the Knight Professor of Constitutional Law and the First Amendment, Yale Law School.

April 15, 2004

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JURIST Contributor Jack M. Balkin is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. Professor Balkin received his Ph.D in philosophy from Cambridge University, and his A.B. and J.D. degrees from Harvard University. He served as a clerk for Judge Carolyn D. King of the United States Court of Appeals for the Fifth Circuit and practiced as an attorney at Cravath, Swaine, and Moore in New York City before entering the legal academy. He has been a member of the law faculties at the University of Texas and the University of Missouri-Kansas City, and a visiting professor at Harvard University, the Buchman Faculty of Law at Tel Aviv University and the University of London.