JUDGING THE JUDGES: The Judicial Appointments Process

Tuesday, August 26, 2003

In his first term, President George W. Bush has had difficulty getting his nominees to the federal courts of appeal confirmed by the Senate. The Democrats have taken the almost unprecedented step of threatening filibusters to prevent floor votes on certain nominees. Has the judicial appointments process become the latest victim of bitter partisan politics? Or has the judiciary brought this state of affairs on itself by advancing a doctrine of judicial supremacy, leaving the executive and legislative branches no choice but to resort to political litmus tests for nominees? What does this situation bode for the next Supreme Court nomination? And what, if anything, should be done to reform the process?

Recorded on Tuesday, August 26, 2003

Peter Robinson: Today on Uncommon Knowledge, how not to choose a judge.

Announcer: Funding for this program is provided by the John M. Olin Foundation.


Peter Robinson: Welcome to Uncommon Knowledge. I'm Peter Robinson. Our show today: choosing judges--has our system for selecting federal judges and justices of the Supreme Court gone awry?

What you'll learn in a civics lesson is this: choosing federal judges is straightforward. The President nominates judges and unless the President's nominees are terribly unqualified professionally, the Senate confirms them. As simple as that. Yet in recent months, President Bush has been having a lot of trouble getting some of his nominees through the Senate. Democrats in the senate have prevented floor votes on certain nominees by threatening filibusters, a tactic seldom, if ever, used before. What's going on? Is it mere partisan politics or is there something deeper at work, perhaps a struggle over the role of the federal judiciary itself.

Joining us today, two guests. Jesse Choper is a professor of law at the University of California at Berkeley. Clint Bolick is a fellow at the Hoover Institution and Vice President of the Institute for Justice.

Title: Judging the Judges

Peter Robinson: Former Secretary of Education Joseph Califano: "Both sides know that many of the individuals who fill these court seats will have more power over the death penalty, abortion, environmental issues, the constitutionality of redistricting for House elections, gun control and the rights of women and minorities than the President or Congressional leaders and for a longer period of time. That's why professional qualifications should only be the threshold step in assessing judicial nominees." In other words, the Senate should subject judicial nominees to litmus tests? Jesse?

Jesse Choper: Perhaps right for Supreme Court, not right for the Court of Appeals.

Peter Robinson: Clint?

Clint Bolick: A kernel of truth there. Judges have more power over our everyday lives than people could possibly imagine.

Peter Robinson: So a litmus test is only appropriate?

Clint Bolick: Oh, litmus test I think is inappropriate for any judges.

Peter Robinson: All right. The first question is has it always been this way? We have legal scholar Terri Peretti notes that although the Senate has rejected 20% of all Supreme Court nominees in its history, it rejected only five nominees in the supposedly contentious 20th century, which is well under the historical average. So the question is this, the Senate isn't really being any rougher on nominees than it ever has been. Jesse?

Jesse Choper: Well, I think that's right. Although I think the last 15 years, it's been rougher.

Peter Robinson: It has been rougher?

Jesse Choper: Oh sure.

Peter Robinson: So this is a very recent change.

Jesse Choper: Oh sure. It breeds on itself, I should say. It breeds on itself. Sure. No matter who--it's retaliation. It's our turn now.

Peter Robinson: Okay. So then let me give you the statistic then that involves these last 15--actually a little farther than the last 15 years--last 20 years. Roger Pilon, "The confirmation rates for the first year," now this is presumably when a President is at his most powerful, "for the first year of recent administrations, taking nominees," this is not just Supreme Court but for district and appellate courts together are as follows, Reagan gets 91% through, Bush the elder gets 62% through, Clinton 57%, Bush the younger, only 42%. And when just the Circuit Court confirmations are looked at, we find that only 9 of George W. Bush's 29 first-year nominees were confirmed. That's only 31% and two of those were holdovers from the previous administration.

Jesse Choper: They were gifts.

Peter Robinson: They were gifts, exactly. Okay so the question then is what's going on? Why have we seen this?

Clint Bolick: Well there is, I think, something understandable about this in the sense that as the courts become more powerful, the stakes rise. And right now, I think as Professor Choper said a few moments ago, it is payback time. And every year the payback gets worse and worse in terms of whatever the rules were last time--we'll make them a little worse this time.

Peter Robinson: So it's not equivalency. It's massive retaliation. That's the general rule.

Clint Bolick: Exactly.

Jesse Choper: Yeah because, you know, an eye for an eye. That's the way they're playing it.

Peter Robinson: Okay. I opened with a quotation from Joe Califano and elsewhere in that same piece of writing, I'm quoting from a column that appeared in the Washington Post, he makes the point that in the old days, he served under what, Johnson and Carter. Those are the old days to him and those old days, the big fights were over Supreme Court Justices. And he makes the point that what's really changed now is that the lowdown scrapping reaches down to the District and Appellate Court nominees. Okay so how come?

Jesse Choper: I have no explanation except to say the increased partisanship and payback.

Peter Robinson: It's not this notion of increasing importance of justices. That's true at the Supreme Court level. That sounds sensible to you at the Supreme Court level.

Jesse Choper: Yes.

Peter Robinson: But District and Appellate Court Judges are no more important than they ever were?

Jesse Choper: I think that's true. I think that the number of cases in let's say the Courts of Appeal...

Peter Robinson: Right.

Jesse Choper: ...particularly. The number of cases in which ideology is going to play any role at all is very small. All right. It's not to say that ideology won't play its role but in contrast to the Supreme Court where a large percentage of the docket is ideological, in the Courts of Appeal...

Peter Robinson: So when you say ideological, you mean that a layman, somebody like me, can look at it and say there's a leftwing or liberal position, there's a rightwing or conservative position.

Jesse Choper: Yeah, that's right.

Peter Robinson: Just a simple test like that.

Jesse Choper: Yeah, they won't see it on some complicated bankruptcy ruling which the Supreme Court does or tax ruling, but when you get the question of gay rights, you get the question of affirmative action and you get the question of states' rights.

Peter Robinson: Right.

Jesse Choper: And the Supreme Court has a pretty good percentage of those, you know, pretty good percentage of its fairly small docket, are those cases. That's not true for Courts of Appeals.

Peter Robinson: Okay so what...

Clint Bolick: That's generally true. And there's one other factor as well and that is that the Supreme Court cannot be reversed on its constitutional decisions. So there is a correctability if an appellate judge or a district judge strays too far from the mainstream.

Peter Robinson: Clint mentioned that the Supreme Court is becoming increasingly important but why?

Title: One Court to Rule Them All

Peter Robinson: Your colleague at Berkeley, John Yoo, has written a long article in which he suggests that there's a specific doctrinal wrong turn that the Court takes. Beginning in 1958, John Yoo argues, in the case of Cooper v. Aaron, the Supreme Court for the first time asserts that its interpretations of the Constitution bind all other government officials. And you go right through--you get in the 1992 case Planned Parenthood v. Casey, you get O'Connor and Kennedy and Souter writing that the belief of Americans that there are people who wish to live according to the rule of law, "is not readily separable from their understanding of this Court, the Supreme Court, as invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals." And John Yoo says that kind of statement to Chief Justice John Marshall in the early nineteenth century to Thomas Jefferson, all the way through the middle of the twentieth century, would have been an outrage. That the Court has made a doctrinal mistake of judicial supremacy and that's really where the trouble starts. And the Court can climb down and fix things.

Jesse Choper: John Yoo is a very smart guy with whom I do not always disagree. But I'll tell you what I would disagree with. Jefferson would take his view, I don't think Marshall would. But he's an historian. And I'm not. It's true that in 1958 in Cooper against Aaron, the Court made a dramatic statement. All right, which...

Peter Robinson: You grant that. Something happened?

Jesse Choper: Well they--something was said.

Peter Robinson: All right.

Jesse Choper: You know, we should say when it was said and this was when in Governor Faubus was fighting desegregation orders in Little Rock, Arkansas.

Peter Robinson: Right.

Jesse Choper: So it was a dramatic statement, a very special opinion, special term called for, special period of time. They all signed the opinion, very unusual, etc., etc. All right. But the fact is that I think the conventional wisdom has been that the other branches do have a role.

Clint Bolick: I think something did happen but it's not exactly what...

Peter Robinson: Okay.

Clint Bolick: ...John identified. And that is that courts began to take on legislative and executive powers.

Peter Robinson: Right.

Clint Bolick: For example, the entire notion of racial quotas and forced bussing...

Peter Robinson: Bussing.

Clint Bolick: ...really emanated from the courts largely, not from the legislatures. Instead of just negating laws that were unconstitutional and I think that when courts do that generally Americans support it. They began to run school systems and run prison systems and things like that. And that, in turn, sparked a great deal of outrage. Now one reason why I think that we shouldn't go overboard in scrutinizing judicial nominees is that there is a democratic correctability. When the Court strays too far from the popular consensus as the Warren Court did in the 1960s, I think that's one of the reasons why Richard Nixon was elected President. Likewise, when many Americans perceived that the Court was moving to possibly overturn Roe v. Wade, there was an electoral reaction to that. So it became...

Peter Robinson: It expressed itself in the election of Bill Clinton?

Clint Bolick: To an extent and I remember in Virginia, Governor Wilder, ran actually as the candidate who would protect Roe v. Wade. How a governor would do that, I have no idea.

Peter Robinson: But there are signals being sent to the Court. You're getting out of line here.

Clint Bolick: Exactly. So I think that the Court does create a lot of its own problems when it strays beyond the boundaries of true judicial and legitimate judicial action. But there is also a democratic mechanism that will correct that.

Peter Robinson: Onto another possible explanation for the increasingly hostile judicial nomination process, the Supreme Court's role in the 2000 election.

Title: Snakebitten

Peter Robinson: Let me quote an article by Peter Parcher and Partha Chattoraj, if I'm pronouncing her name correctly, New York Law Journal, "For many of us across the political spectrum, the 2000 Presidential election case, Bush v. Gore, seemed to transgress some intangible boundary." Another point, data point, Yale Law School's Bruce Ackerman said we need, "a moratorium on Supreme Court appointments until the American people return to the polls in 2004." So the question is did that one case inject a particular kind of venom into the nomination process?

Clint Bolick: That case I think is very, very difficult to square with the role of a conservative judiciary. I had predicted that not a single Justice would vote to take that case and I was utterly and totally wrong in my prognostications on it.

Jesse Choper: Me too.

Peter Robinson: You were with him, you predicted the same?

Jesse Choper: Look, we were not alone.

Peter Robinson: No, no, no.

Jesse Choper: Most observers of the Court predicted that.

Peter Robinson: There was not a lot on the record of Antonin Scalia or William Rehnquist that would--all right. Okay.

Clint Bolick: That's right. You know, a believer in federalism would find it ordinarily very difficult to do what the Court did and five believers in federalism did end up doing that.

Jesse Choper: And four skeptics in Federalism went the other way. So it was a bad decision, not for what they said...

Peter Robinson: Bad decision to take the case or...

Jesse Choper: To take it.

Peter Robinson: To take it. That was the mistake.

Clint Bolick: What actually surprises me about that decision is that the Court as an institution has, I believe, earned such respect over the years that that decision has not created nearly the uproar that I would have suspected and most Americans.

Peter Robinson: It made people angry but there were no mass demonstrations.

Clint Bolick: Exactly...

Peter Robinson: There were no riots.

Clint Bolick: ...and I don't think that it's really going to trickle into the next election very significantly.

Peter Robinson: Do you think though that this is an important part of the background in the nominations fights now taking place?

Jesse Choper: I don't.

Peter Robinson: You don't?

Jesse Choper: I don't. I think it was all there before.

Peter Robinson: Okay.

Jesse Choper: And I think there's a logic that says that it should have been for the next Supreme Court nomination and there's a logic to support Bruce Ackerman's position although we've accepted that ruling. And we've moved back to where we were which was great antagonism in the Senate about judicial appointments.

Peter Robinson: Okay. Last question then about why we have this acrimony because the Court is so evenly divided.

Jesse Choper: Well I think that's true. There's more at stake.

Peter Robinson: It's 5-4 on one decision after another.

Jesse Choper: Although I think...

Peter Robinson: 5-4...

Jesse Choper: I think we'd have it anyway.

Peter Robinson: You do, okay.

Jesse Choper: But if Justice O'Connor who has been rumored, you know, to want to step down--she's such a key figure in American jurisprudence and in American law. She determines whether affirmative action is legitimate or not. She determines whether vouchers can be used or not. She determines whether race-based districting can be used at all. Right? So...

Peter Robinson: Because there are four votes here and four votes here and she decides where the majority...

Jesse Choper: Yeah, she's in the middle and effectively that's true for abortion too. So if she were to have announced her retirement, we'd have had a bloodbath in the Senate about her.

Peter Robinson: Can I ask you this then? Is it plausible to suggest that Sandra Day O'Connor, William Rehnquist, perhaps John Paul Stevens, he's one of the older...

Jesse Choper: He's the oldest.

Peter Robinson: ...the oldest--that they, in some way, accept Bruce Ackerman's suggestion, that they are waiting this out until the next Presidential election because they would consider it unseemly to have their successor appointed by the man whom they, in effect, put in the White House? Do you think that's in their minds?

Clint Bolick: I do think that that's...

Peter Robinson: You do?

Clint Bolick: ...in their minds and I also think that at least a couple of them who would like to have conservative replacements, are banking on the reelection of President Bush. I hope their political prognostications are better than mine.

Peter Robinson: We've explored a few reasons why the nomination process is such a mess but how should the Senate behave?

Title: Advise and Dissent

Peter Robinson: Here's what you learn in civics. The President's nominees to the federal bench are entitled to deference because the President is the only member of the federal government elected by the entire nation and he therefore enjoys a particular kind of democratic mandate that no member of the Senate enjoys and, in particular, a mandate for his judicial agenda. So the Senate should defer to his nominees unless they're wildly unqualified professionally? Does that make Constitutional sense? Does it make historical sense? Clint?

Clint Bolick: Well I think it probably goes a little too far in terms of legislative deference. If you look at the Constitution, it calls for the Senate to play an advise and consent role.

Peter Robinson: Right.

Clint Bolick And I think that ought to be a vigorous one. The Senate is the last democratic checkpoint before lifetime confirmation of a very powerful person. Having said that, I agree with Professor Choper that the stakes are so much higher for the U.S. Supreme Court and that for the lower courts which decide less controversial issues in many instances, and do have the appellate review, I think that there should be greater deference, not absolute deference but certainly the kind of judicial blockade that we have seen increasingly in recent years.

Peter Robinson: We have three nominees to lower courts on whom votes on the floor are being prevented by the threat of a filibuster. And you're saying that's wrong?

Clint Bolick: I am saying that's wrong. And even for the U.S. Supreme...

Peter Robinson: It's a matter of sort of morality or is it a matter of historical precedent. How...

Clint Bolick: Well it is wrong as a matter of historical precedent and it's also terrible, terrible politics. I mean, we've already seen these things turn around. We now have a Republican Congress and a Republican President. Just not too long ago we had exactly the opposite. It's been split in both directions. So whatever rules we make today are the rules that we're going to live by down the line. And I think that when you simply, you know, you blockade nominees, and also the filibuster, I think, is especially problematic. The notion of a blue slip or a single Senator can hold up a nomination. These are really worrisome tactics.

Peter Robinson: Jesse?

Jesse Choper: I agree with almost everything that Clint said. Of course, the single Senator...

Peter Robinson: Let me put it in a partisan way. The Democrats have no right in law and history; they have no right to do what they've done to hold up these lower court nominees?

Jesse Choper: I don't know about law and history. I...

Peter Robinson: I shouldn't say law.

Jesse Choper: Let me talk about policy.

Peter Robinson: Okay.

Jesse Choper: I think it's bad policy. I think it's bad for the country. I think talented people who are making anti--or pre-final decisions on the great issues of the day, they're more than qualified. I think most people could admit that most of these nominees are highly qualified. All right.

Peter Robinson: Okay.

Jesse Choper: They ought to go through for the Courts of Appeals. I think it's different for the Supreme Court. And I think it's different because they do exercise enormous policymaking power in this country.

Clint Bolick: It seems to me that the Senate ought to have a vigorous confirmation battle and get to a floor vote in each and every instance. I believe in the case of the Supreme Court as well, especially for the Supreme Court where the absence of a single justice can really paralyze the Court. Have a robust debate...

Peter Robinson: Move it to the floor...

Clint Bolick: ...but...

Peter Robinson: ...bring it before the public.

Clint Bolick: Exactly.

Peter Robinson: Let's suppose the next Supreme Court Justice to retire waits until after the next Presidential election to do so. How should the President at that time, whoever he is, choose a replacement?

Title: A Compromising Position

Peter Robinson: How do you advise the President to choose the next Supreme Court nominee? Do you say, Mr. President, it's up to you. If you're a strict constructionist or believe in original understanding; you belong to the school of Robert Bork, go find a justice who believes that and name him. It's your duty to do what you consider right. Or do you say as a matter of getting a nominee through to prevent an enormous national imbroglio, find a compromise candidate? What do you advise?

Jesse Choper: The way you stated them, that's pretty close to accurate. President doesn't have much choice unless he/she wants to be a martyr. You know, sure send up a sacrificial lamb. You'll feel that you did the right thing. Bing! Cut off, you know, cut off at the knees. So I wish I had a better answer than that because I think it's unfortunate that someone...

Peter Robinson: Here we have two legal scholars and what's interesting to me here is that there doesn't seem to be any body of precedent that would be recognized as binding on the President or on the Senate. So I say to you should he do this or this and you answer with an argument from politics.

Jesse Choper: I'll tell you what would be nice.

Peter Robinson: Yeah.

Jesse Choper: No, that's right. It's a matter of law. Look, our Constitution gives the President the right to nominate. He can nominate anyone he pleases. And the Senate has the right not only to advise. Maybe you do know what that means, I don't quite know what it means. But consent--that's the big deal. It means nothing happens unless we agree.

Peter Robinson: The Constitution of the United States makes this a brass knuckles game.

Jesse Choper: In a way it does. That is the last bastion of political accountability for these judges who exercise this enormous power in our country. This is the spot where the people and their elected representatives can have their say.

Clint Bolick: In terms of historical precedent, the one thing that has dramatically changed is the greater scrutiny by the Senate of lower court nominations.

Peter Robinson: Right.

Clint Bolick: That is without historical precedent. But I would differ in the advice that Professor Choper gave. I would advise the President, Democrat or Republican, to nominate a candidate to the Court who reflects that person's views and support that person and this is something that no candidate...

Peter Robinson: Gird yourselves for battle.

Clint Bolick: ...has done. Gird yourself for battle but also let the nominee speak. This would be one of the most wonderful teaching vehicles about the courts that we could ever see is to actually see a nominee who is not muzzled.

Jesse Choper: Yeah, but Presidents don't want to teach. Presidents want to get their nominees confirmed. Unless they think it's strategic to make the Senate look bad, that is make the other party look bad.

Peter Robinson: Right. Right.

Jesse Choper: And have a highly qualified person who does a good job speaking. You know, for better or for worse, that was Robert Bork's problem. He did not do well in speaking. It's not what he said.

Peter Robinson: Fine judge, lousy politician?

Jesse Choper: Yeah.

Peter Robinson: He lost the political game.

Jesse Choper: I think that's right. You talk about people who are qualified. There was nobody who had greater qualifications maybe ever to be nominated at the Supreme Court but he had a strong point of view and he gave no quarter.

Peter Robinson: Final question: Is there any hope of returning a little civility to the judicial appointments process?

Title: The System is Down

Peter Robinson: Do you then view this kind of pitched battle that you both feel quite certain we're in for when the next vacancy occurs? Do you view that pitched battle as evidence that something's wrong with the political system, that the Court is too powerful, that it matters too much, that this judicial activism or if you buy John Yoo's argument, the specific doctrine of judicial supremacy, that the Court has got to back down because it has placed itself too much at the center of American life and this is not healthy--to insure the domestic tranquility as one great document puts it? What do you think?

Clint Bolick: Well I think...

Peter Robinson: Or we just have to live with it--that's the way the Court is.

Clint Bolick: I think that describes government in general. I mean, the reason that we have so much campaign spending and we spend so much of our time talking about campaign finances that the stakes of government have gone across the board too much. But there's one place where the political system is breaking down. And that is that the interest groups that argue about these nominations are totally out of control and exercise no self-discipline. The only rule guiding these groups right now is that the ends justify the means. We will take down a candidate not because of what that candidate believes which is how the Institute for Justice argues in nominations but what video rentals this person has made and that sort of thing. That is tarnishing the system. The Senate cannot and must not abide that and should simply not get into that process but...

Peter Robinson: So at a minimum, whoever's Chairman of the Senate Judiciary Committee, next time this battle comes up says look fellows, staff, fellow members of the Senate, I'm not admitting--nobody's going through trash cans…

Clint Bolick: That's the FBI's job.

Peter Robinson: I want no personal assassination. There's one actor who can actually establish some rules of decorum and...

Jesse Choper: You see, I agree with that but I want to say this, that was--I think that putting politics and ideology flat out on the table doesn't eliminate it but avoids some going into trash cans, finding out if 14 years ago, someone was late on their income tax payments because that's what used to happen. That's the thing that the Bork nomination did. It put on the table what the real issue was and that is his ideology.

Peter Robinson: So it's a legitimate question for a member of the Senate Judiciary Committee to say, Judge, Sir or Madame Judge, what's your position on Roe v. Wade? Tell us right now and let's get this over with?

Jesse Choper: Yes, I think it's legitimate. I don't think you can say you got to promise me you're going to vote this way...

Clint Bolick: Right.

Jesse Choper: ...when a case comes along. But what's your position? Of course.

Clint Bolick: I totally agree with that.

Jesse Choper: I want to say this, I'm an academic. A lot of my ilk, right, their positions are on the table. Why should the other people get away with that?

Peter Robinson: Gentlemen, it's television so I have to move to the last questions here. Will the next Justice of the Supreme Court, the next confirmed Justice of the Supreme Court represent a liberal, a conservative--you're the one who said we can put our ideology right on the table here, a liberal, conservative or a compromise candidate?

Jesse Choper: Compromise candidate.

Clint Bolick: If it is a liberal or a conservative, it will be a stealth liberal or a conservative, someone who has what I call indicia of confirmability but who has a political bias.

Peter Robinson: All right, Clint, Jesse, thank you very much.

Peter Robinson: I'm Peter Robinson for Uncommon Knowledge. Thanks for joining us.