Contention over top judicial nominees will persist into the next presidential administration and the next Supreme Court candidate will probably be Hispanic no matter who gets elected, according to participants exchanging sometimes heated remarks at an Oct. 28 event focusing on the election’s implications for the federal judiciary.
Hosted by the American Constitution Society, the Federalist Society, Virginia Law Democrats, and Virginia Law Republicans, the talk featured freelance writer and commentator Jennifer Braceras, a Bush appointee to the U.S. Commission on Civil Rights, and Robert Raben, formerly an Assistant Attorney General in the Department of Justice’s Office of Legislative Affairs under the Clinton administration and a legal adviser to the House subcommittee that oversaw courts.
Some of the problems with the judiciary, Raben suggested, have to do with “the still-unclear position that Congress has about what to do with its co-equal branch, the judiciary.” He explained that two confirmation processes happen at the same time—the 95 to 97 percent of nominees who are in the “tedious, monotonous, quiet, boring, hurry-up-and-wait process” and the rest who find themselves in the political crosshairs. Raben said it was important to remember that everyone involved in the process was there voluntarily, and that most nominees engaged in a party process at home in order to become a nominee. “They’re not conscripts,” he said. “The most important thing in the confirmation process is luck.” Getting approved may depend on whether senators from the nominee’s home state are pro-confirmation.
The confirmation process “probably works as envisioned,” Raben said, noting that George Washington’s early nominees, who didn’t agree with the Jay Treaty, faced similar confirmation hardships. “The overwhelming majority of nominees of presidents…get through,” he said. He acknowledged the process doesn’t work as well for some controversial candidates like Miguel Estrada, a nominee to the U.S. Court of Appeals for the District of Columbia who remained in limbo for two years before withdrawing his name from consideration. Democratic senators filibustered to block his approval, which only requires a majority. Sixty votes are required to defeat a filibuster.
“I think you’re going to see much more of the same for a very long time,” Raben said, as long as people have deeply held beliefs about what Article III courts should look like.
Braceras said judicial nominations are extremely important when deciding who is president, although most people never think about it, especially now with issues of war and the economy foremost.
“It’s also my belief that the president’s biggest legacy is the appointments to the lower courts,” where most cases are decided. “The next president will have a large stamp on the makeup of the lower courts.”
Braceras charged that the nomination process was “fundamentally broken.”
“The use of the filibuster has upped the ante and raised the bar in a way that was not contemplated by the Founders,” she said. Bush’s nominees have been “eminently well-qualified and quite diverse,” she said. Of the first group of 11 appellate nominees, announced in May 2001, six were women and minorities and several were Democrats. Their common trait is that “they consider themselves to be constitutionalist judges.” Braceras said they understand they are not supposed to make social policy but to judge objectively and exercise judicial restraint. Bush has applied no litmus test, she continued, but cares that judges put their personal or political views aside. Kerry, however, has made clear that “he will appoint judges who will not just interpret the law but those who will ‘do justice.’” She gave the Massachusetts Supreme Court ruling that allowed gay marriage as an example of letting personal views dominate decisions. She guessed that Democrats rely on courts to enact their social agenda because they fear they lack the ability to persuade the public or “perhaps they’re just lazy.”
What’s new during this administration is that Democratic opposition to a given nominee is no longer about whether a candidate has a record opposing the left, but whether he or she has no affirmative record on an issue, Braceras charged. Special-interest groups lobbied Democratic senators to stall nominees to the Sixth Circuit Court of Appeals who didn’t have a clear position supporting affirmative action because of the then-upcoming University of Michigan case, she alleged. Nominees without a clear pro-choice stance on abortion were automatically viewed as suspect, she said.
Furthermore, a large proportion of candidates stalled by the Senate were women or minorities, she noted, suggesting they faced increased scrutiny. She explained that there’s an expectation by liberals that women and minorities all think alike, but these nominees weren’t toeing the party line. “I think that [liberals] fear that female and minority nominees who may be conservative will somehow convey legitimacy to conservative views that white males don’t,” she said. White males’ conservatism can be explained away as elitism, she said. Minorities and women “pose more of a threat—it’s that simple.”
She alleged that the focus on abortion was an “insidious form of discrimination against people of faith.” Braceras said someone told her that when her father’s name came up in the Clinton administration as a possible Supreme Court nominee, they decided that “because he’s male and because he’s Catholic, he can’t be trusted” on the abortion issue.
“All of this has exposed a deep hypocrisy of the left,” she said. When Bush gave the Senate diversity, his nominees were rejected. “Diversity to these people is not an end in itself, but rather a proxy for left-wing views.”
As a senator, John Kerry has supported litmus tests and participated in “obstructionist” politics when it came to nominees, she said. He has said publicly he will use a litmus test on the abortion issue.
Given a chance to respond to Braceras, Raben wondered if he and Braceras were invited to different forums. “The focus on the extreme as a presentation—as if that were the norm—is awful,” he said, reasserting that the vast majority of nominees gets appointed. “Neither party has a monopoly on bad behavior.” He questioned whether a filibuster was any different from former Senate Judiciary Committee Chair Orrin Hatch’s refusal to bring a nominee to a hearing, as was done with Elena Kagan during the Clinton administration. Kagan, then White House Counsel, is now the dean of Harvard Law School.
Bush’s complaints about activist judges ring false when the majority of the Supreme Court has struck down more congressional enactments than any group of justices since the New Deal.
“Activism has no meaning,” he said. “Activism is a phrase that has been message tested.” He also said “litmus test” was an empty phrase, noting that the whole question of Roe v. Wade was a distraction because it wasn’t an issue the lower courts would decide.
Braceras agreed that the majority of nominees get through, but at the appellate level, the rate of confirmation is lower. She said Republicans also have been guilty of blocking good nominees, such as Kagan. But “I don’t think the Democrats could have hoped for a better group of nominees than this president gave them.”
She disputed Raben’s characterization of “activism.” A judge that strikes down a law that conflicts with the Constitution is not an activist, she said. Rather, an activist is someone who can’t put aside their personal beliefs to judge on law.
Raben said that while the system isn’t perfect, at least nominations are dealt with publicly. “The lack of conflict [over nominations] doesn’t mean it’s a good process.”
Braceras said the current debate is “more of a systematic attack on philosophy” rather than the personal attacks people saw in the Robert Bork and Clarence Thomas nominations.
Raben said personal attacks often disguise other reasons senators don’t like a nominee. In his own confirmation, Raben was criticized for a satirical piece he wrote on mandatory drug testing. Some senators said privately they wouldn’t vote for him because he was openly gay. “The stated attack is frequently not the real concern,” Raben said. In the end he was approved 98-0. The shifting scope of the attack has improved the debate, he argued, because it now focuses on actual jurisprudence.
Raben said Bush’s talk of uniting Beltway politicians before his election and his subsequent bipartisan efforts were squandered during the 2002 election, when Republicans attacked all running Democrats as if they were all the same. Democrats saw how those who had supported much of the president’s agenda, like Max Cleland and Mary Landrieu, were assailed (Cleland lost). “That was the turning point,” he said.
But when it comes to Supreme Court nominees, “the Democrats are the least of his worries.” Bush’s likely top pick, White House Counsel Alberto Gonzales, may not be anti-choice enough for those on the right, he said.
Braceras told the audience the lists of potential Supreme Court nominees
filtered through the press are designed to placate certain groups or
are put there by people who want certain candidates on the list. Both
Democrats and Republicans realize the political advantage of appointing
the first Hispanic, she said. If Kerry wins he may pick Sonia Sotomayor
from the Second Circuit Court of Appeals, and Bush would likely pick
Gonzales. The joke among many on the right is, “how do you say
Souter in Spanish?”—“Gonzales,” she noted. “I
think that the influence of those people will be marginal.”