A Little Centrism Here, Please

Unless you've been busy preparing for the new Star Wars movie for the past several weeks (it's hard to see or hear the news when you're wearing a Darth Vader helmet), you're probably aware that Senate Democrats and Senate Republicans are having a wee bit of a rhubarb these days over judges. Imagine "Sweet" Lou Piniella vs. Larry "The Cat" Bowa in a Celebrity Death Match, and you begin to get the idea. Even Robert "Kid Pothole" Byrd has thrown a few shaky roundhouse rights at the ears of the Majority Leader. Watching C-SPAN2, one expects to see the Clantons and the Earps come storming from the Senate cloak rooms at any minute.

Republicans are angry that Democrats plan to filibuster ten Bush nominees for the federal bench, rather than let the Senate vote on them. Democrats are angry that President Bush has re-nominated several of these people, despite the fact that the Senate has already rejected them once, and they're angry that the Senate Republicans are threatening to use the so-called "nuclear option" (or, as it's sometimes called, the "nuke-u-lar" option) -- change the Senate rules so that the filibuster is not allowed when a judicial nominee is under consideration.

One has to wonder: how did we get here? This government has been in existence for about 215 years. The rules for getting federal judges appointed have been essentially the same for all of those years. And somehow, the government managed to get judges appointed under those rules for 200 of those years; most of the time, with at least 75% approval in the Senate. What happened? Where did we go off the rails?

Republicans argue that what's changed is the Democrats' use of the filibuster. The filibuster never used to be used on judicial nominees, they say; it was an unwritten rule, one of the many such customs and traditions of the Senate. And they're right. Sort of. That was the tradition. But Democrats aren't the first to violate it. In March of 2000, Sen. Robert C. Smith, Republican of New Hampshire, filibustered President Clinton's nominee to the 9th Circuit, Richard Paez. Sen. Smith was joined in his effort by a certain Senator from Tennessee. That's right. Majority Leader Bill Frist (R-TN), the man now saying the filibuster has never been used to block the appointment of a federal judge, used the filibuster to block the appointment of a federal judge only 5 years ago.

Republicans and right-wing interest groups complain that the Democrats are doing something unprecedented in holding up President Bush's nominees. They make it sound as if the Democrats are holding up scads of the President's judicial nominees. In fact, of 215 judicial nominees President Bush has sent to the Senate, 205 have been approved. That leaves 10 who've been rejected. Care to know how many of President Clinton's judicial nominees were being held up by Senate Republicans when Clinton left office? 34.

Another claim being made by Republicans and right-wing interest groups is that "thousands of people" are unable to have their cases heard in court because Senate Democrats are blocking so many of President Bush's judicial nominees, and that others are having their cases delayed for the same reason. Let's unpack that claim a bit. For starters, according to the Administrative Office of the U. S. Courts, cases are moving more quickly through the courts today than they did in 1999. Second, just how many empty courtrooms are there? Well, there are 46 vacant judicial seats. So the onerous Democrats must be blocking 46 Bush nominees, thus slowing justice for people with cases pending, right? Actually, no. President Bush hasn't even nominated anybody for 30 of those 46 seats.

How about at the end of the Clinton administration? Well, there were 67 vacant judicial seats in December of 1999, 34 of which Clinton had nominated people to fill, but those nominees were being blocked by Senate Republicans. If holding up 16 judges is a disaster affecting "thousands of people," what would holding up over twice as many be? If Republicans are so concerned about the damage done to the American people by 46 empty courtrooms, where was their concern when there were 67? And why don't they pressure their President to nominate enough judges to fill more than a third of the currently vacant seats?

The fact is, the behavior of the Senate regarding judicial nominees hasn't changed much. When Republicans are in the minority, they use the rules to try to block nominees they don't like. When Democrats are in the minority, they use the rules to try to block nominees they don't like. Is there anything really new about Democrats' use of the filibuster on judicial nominees? No. They're probably using it more than it was used previously, but that's largely because the Republicans have removed several of the rules they themselves used to use to block nominees.

So what has changed in the judicial confirmation process?

A couple of things, I think. For one, the atmosphere in the Senate has grown more and more poisonous over the past 15 years. Senators no longer trust one another as much as they once did, they don't trust the leadership as much as they once did, and they aren't as deferential to one another as they once were. It used to be the case that if a judicial nominee had the support of both Senators from his or her home state, that carried a tremendous amount of weight. It no longer does. (It also used to be the case that a Senator could block any nominee from his or her home state from even coming before the Judiciary Committee. That's one of the rules that the Republicans have changed.)

Another thing that has changed is that the country has become more closely divided in terms of party identification, and each side has become more bitter in its opposition to the other. Senators feel that pressure when it comes time to vote. Republicans feel it from the social fundamentalists like James Dobson, and from tax fundamentalists like Grover Norquist. If you don't believe me, just ask Arlen Specter. Democrats feel the pressure from interest groups like labor unions, minorities, and People for the American Way. The party base on both sides has taken a no-compromise position, and they're holding their representatives' feet to the fire. That means that when their party holds the White House, they demand that the judicial nominees be true-believers like themselves. And it means that when their party is the minority, they demand that anybody who looks like a true-believer from the other side be firebombed. As a result, we get less mainstream nominees and more flammable confirmation debates.

And that brings me full circle. Why does the use of the filibuster even matter when it comes to judicial nominees? Because it's hard to get 60 votes for a nominee anymore. As I've already said, for most of our history, the great majority of judicial nominees have been approved with 75% of the vote or better. With support like that, the filibuster would be completely irrelevant. So the solution, ISTM, is for the President -- any president -- to make sure his or her nominees are not out of the mainstream. A qualified, centrist nominee is going to be approved, even over a filibuster, a large majority of the time, even in the current poisonous atmosphere (to wit: literally 95% of President Bush's nominees have been confirmed). A nominee who is a nod to the extremists in the party base (either party base) is DOA. The more bitter the country's political divisions, the more centrist judicial nominees have to be. The less bitter the divisions, the more a president's nominees can vary from the center (to wit: Antonin Scalia was approved 98-0).

In the end, judicious nominees make harmonious confirmations.