Confirmation Wars and Constitutional Authority (Part II)

(Editor's Note: This piece first appeared in Law and Liberty on August 16, 2018.)

When it comes to judicial nominations, the motto of Senate Republicans is best summed up by paraphrasing the character of Judah Rosenthal in Woody Allen’s 1989 film, Crimes and Misdemeanors. “In reality, we rationalize, we deny, or we couldn’t go on confirming.”

This is evident in how the Republicans’ handled three controversies over the last fifteen years. Despite the fact that the Senate has every right to decide how it considers judicial nominations, Republicans went to great lengths to portray their position in each of these controversies as being consistent with the Constitution while claiming, or at least strongly hinting, that their opponents’ position was not. Yet when examined together, it becomes clear just how divergent the Republicans’ position was in each particular instance. This suggests, as I argued yesterday, that Republicans’ shifting justifications for their ever-evolving position in the confirmation wars were, at bottom, pragmatic instead of principled. I believe that most Republicans are sincere in their desire for an apolitical confirmation process that preserves the judiciary’s unique role in our political system. But that isn’t possible when senators in both parties see the process as a means to an end that only they get to define. No matter their good intentions, thinking about the confirmation process in these terms makes possible rationalization after rationalization to achieve the desired end. This delegitimizes the very idea of dissent and, tragically, undermines the public’s trust in the courts despite the Republicans’ original motivation.

The irony is that the Constitution gives the Senate complete discretion to decide how it considers judicial nominations. The institution is not bound by some abstract idea of what the confirmation process ought to look like. The Senate’s role is instead grounded in the fact that letting the president alone name judges to the federal bench would politicize the judiciary. Republicans’ constant invocation of principle in the confirmation wars hides the fact that they instead appear to be rationalizing whatever actions are needed to confirm controversial judicial nominees when they are nominated by a Republican and to oppose them when nominated by a Democrat.

Of course, the Constitution does intend the judiciary to play a specific role in American politics. And Republicans have generally supported judicial nominees who are likely to stick to that role. But that doesn’t then mean that their positions are grounded in principle per se. For example, consider the Republicans’ rationalization of their decision to confirm Brett Kavanaugh before the November elections. Just two years ago they refused to even consider Merrick Garland’s nomination in a similar situation. Republicans maintain that while the two situations may appear similar, they are in fact quite different. This is because 2016 was a presidential year and 2018 is not. Armed with such logic, Republicans are able to rationalize their behavior and confirm away.

But their logic is flawed. The Republicans’ defense is belied by the way in which they rationalized altogether different behavior in an earlier controversy over judicial nominations during the George W. Bush presidency. And their attempts at present fail to reconcile the apparent contradiction between the positions they have taken on Garland and Kavanaugh. Republicans nevertheless believe that a rationalization of some form is needed. This may be because the one variable that appears to account for the Republicans’ behavior across all three controversies is the party affiliation of the president in office at the time.

In 2003 and 2004, Democrats repeatedly blocked attempts by the Republican majority to confirm several of President Bush’s appellate nominees. This prompted Bush to declare “a crisis in our judiciary” and led Majority Leader Bill Frist, R-Tenn., to vow to overcome the Democrats’ obstruction. To do so, Frist began building support for limiting the filibuster over the Democrats’ objections via the nuclear option. Republicans rationalized breaking the Senate’s rules to confirm the nominees in question by claiming that it was unconstitutional to prevent an up-or-down vote on a judicial nomination. They argued that the Constitution’s Appointments Clause created a constitutional obligation on the part of the Senate to give a president’s nominations an up-or-down confirmation vote. For example, Trent Lott, R-Miss., claimed that blocking votes on judicial nominees “completely contradicts the intent, spirit, and language of the Constitution.” And the Chairman of the Judiciary Committee at the time, Orrin Hatch, R-Utah., argued that “denying undisputedly well-qualified nominees the up or down vote they deserve does not fulfill our senatorial duties–it abdicates them . . . The President and the American People have a right to an up or down vote on judicial nominees.” John Cornyn, R-Tex., summed up the Republicans’ case in 2003, referring to judicial filibusters as “unconstitutional filibusters.”

While this controversy differs from those surrounding Garland and Kavanaugh in that it concerned appellate nominees and did not involve a Supreme Court nominee, it would be comical to suggest that it is unconstitutional for senators to block an appellate nominee but perfectly acceptable to do the same to someone nominated to serve on the Supreme Court. And at the time, both Democrats and Republicans equated the two types of judicial nominations. This is because presidents have regularly nominated judges serving on the appellate courts to fill vacancies on the Supreme Court. And it was widely expected in 2003 that there would be up to three Supreme Court vacancies during Bush’s first term. That was why Democrats escalated the confirmation wars in the first place. They feared that failing to stop the confirmation of nominees like Miguel Estrada would make it easier for Republicans to confirm them again in the future if nominated to serve on the Supreme Court. Jon Kyl, R-Az., even described the Democrats’ efforts at the time as sending a message about a Supreme Court nomination.”

In 2016, Republicans’ rationalization of their decision to block Garland was entirely different. This was because, unlike in the previous controversy, Barack Obama, a Democrat, was president. And suggesting that it was unconstitutional to prevent the Senate from voting on one of his Supreme Court nominations would be counterproductive. That’s why Republicans shifted course and argued instead that it was not only constitutional to block a president’s Supreme Court nomination, but that it was also good for American democracy. Majority Leader Mitch McConnell, R-Ky., argued that the Senate should “give the people a voice in the filling of this vacancy.” And he accused Obama for nominating Garland to “politicize” the confirmation process “for purposes of the election.” Yet in doing so, McConnell conveniently omitted the fact Republicans were also politicizing the confirmation process for purposes of the election. As evidence, consider McConnell’s 2017 suggestion that while he wasn’t sure at the time if his effort to block Garland would pay off, he now believes that Trump won the presidency because of it. (And McConnell’s recent threat to push Kavanaugh’s confirmation to right before the November elections to pressure Democrats to support him further suggests that Republicans are willing to politicize a Supreme Court nominee for electoral reasons.)

In July, Republicans again changed their rationalization after President Trump, a Republican, nominated Kavanaugh to be the next associate justice of the Supreme Court, just four months before the November elections. Had they not emphasized the way in which they qualified their 2016 position, Republicans would have been hard pressed to square their decision to push Kavanaugh’s confirmation before the election in light of the 2016 controversy. The standard has now been qualified to explicitly exclude midterm election years. To rationalize the decision to do so, Roy Blunt, R-Mo., argues “that it is a totally different circumstance.” And James Lankford, R-Ok., claims that as 2016 “was a presidential election year, so that was very, very different.”

The implication of the Republican position is that the people should only have a say in a presidential election year. And it is premised on the assumption that the Senate’s role in the confirmation process is secondary to the president’s. There is no other way to explain how a midterm election is less relevant than a presidential election to deciding the fate of judicial nominations. In that way, the Republican’s argument is similar to the position taken in 2003-04 when they claimed that it was unconstitutional for the Senate to not vote on a judicial nomination. However, it contradicts the position Republicans took in 2016, when McConnell asserted, “It is a President’s constitutional right to nominate a Supreme Court justice and it is the Senate’s constitutional right to act as a check on a President and withhold its consent.”

This contradiction can be resolved by considering the president’s party affiliation. Lankford even hints at this and suggests that the Republicans’ distinction between the Garland and Kavanaugh nominations is, at bottom, pragmatic instead of principled. He argues that by not confirming Kavanaugh prior to November’s midterm elections, the Senate would essentially be saying that “every two years you can’t do a nominee, that would be a little odd.”

But that would only be odd if we assume that the Senate can’t legitimately consider judicial nominations during an election year. In reality, the Constitution makes no distinction between presidential and midterm election years for the purposes of confirming federal judges. The Senate is free to process judicial nominations however its members so choose. That means that Republicans don’t need to engage in mental gymnastics to rationalize their constantly shifting positions. They should instead own up to their underlying motivations and justify their shifting positions on the merits. By continuing to pretend that they are taking principled positions, Republicans will only distort the meaning of the Appointments Clause, undermine its intended operation, all the while failing to prevent the politicization of the judiciary.