Campaign 2016

Miguel Estrada and My Thoughts on the Politics of Replacing Justice Scalia

By Benjamin Wittes
Friday, February 19, 2016, 7:59 PM

This has nothing to do with national security, but I have a feeling it will be of interest to many Lawfare readers anyway. Miguel Estrada and I have an essay out in the Washington Post on the judicial confirmation process and the politics of replacing Justice Scalia. We are, shall we say, skeptical of the "principled" arguments of both parties. It opens:

Here’s a simple piece of advice for anyone confused by the partisan politics of replacing Justice Antonin Scalia: Assume that anyone who claims to be acting out of a pristine sense of civic principle is being dishonest.

We have both argued for a world in which judicial nominees receive prompt hearings and up-and-down votes based solely on their objective qualifications — education, experience and temperament. But that has not been our world for at least two decades. The savvy citizen should recognize as much and heavily discount anyone who speaks in the language of principle about the rules or norms that do or should govern the treatment of either a judicial nominee or the president who sends that nominee to the Senate. As recent history demonstrates, the only rule that governs the confirmation process is the law of the jungle: There are no rules. There is no point in pretending otherwise, as much as many of us wish it were not so.

We have come by this view with extreme reluctance. One of us was a judicial nominee who never got a vote from the Senate but who nonetheless publicly encouraged the Senate to support President Obama’s appointees, including an overwhelmingly qualified Supreme Court nominee of the opposite party. The other wrote editorials for The Post for many years decrying unreasonable Senate treatment of nominees of the Bill Clinton and George W. Bush administration alike and also wrote a book arguing for a restoration of norms of expeditious and fair consideration of nominees. Both of us believe that when presidents nominate qualified nominees, the Senate should confirm them, and that courts should be fully staffed at all times to dispense justice to the litigants who come before them.

Rarely has either of us lost an argument more completely at the hands of the entire political culture than we have lost this one.

Here's the meat of the argument:

In the judicial nominations process for which we argued, there were several good reasons for Republican senators to move a nominee advanced by Obama late in his tenure. One was that the Senate owed an institutional duty to the executive branch to consider presumptively qualified nominees in a fair process. A nother was the knowledge that some day, the shoe would be on the other foot. A Senate of the opposite party would confront a late nominee of a president of the opposite party. We all seemed to agree that we would rather live in a world in which both nominees got considered than in a world in which neither got considered. In that world, comity, fairness and long-term self-interest of both parties all pushed towards a relatively predictable, relatively humane (to the nominee), relatively deferential (to the president) process.

In a world in which those norms do not have force, there is no reason in principle to demand that Republicans move a late-stage nominee from Obama.

. . .

Lest any reader think we are making a partisan point here, we hasten to emphasize that if the Senate and the presidency flip hands in November, we also think there will be no principled basis to demand that a Democratic Senate ever consider a nominee by President Trump, Cruz, or Rubio. The decision on the part of a future-Majority Leader Charles E. Schumer at that point is that a 4-to-4 court is a better long-term equilibrium for him than confirming a nominee of the other party will be exactly as defensible as current-Majority Leader Mitch McConnell’s decision today that a 4-to-4 court is a better short-term equilibrium for him than confirming a nominee from Obama.

Whatever elevated rhetoric anyone invokes to suit his or her convenience, the fact is that our real judicial nominations system is now one of raw power and nothing else.