Do you want proof that the two parties operate with two separate rulebooks?
Earlier this month, Republicans required a cloture vote on Barbara Keenan, a nominee to the 4th Circuit Court of Appeals in Richmond, Va. After that vote, Keenan was confirmed by a 99-0 tally.
By contrast, more than half of Bush’s judicial nominees were confirmed by voice vote or unanimous consent. Democrats consented to their confirmation without requiring time to be spent on a roll-call vote on the Senate floor.
Republicans counter that if Senate Majority Leader Harry Reid and the White House believed judges to be a priority, they would use their clout to push them through. Reid controls the Senate calendar.
But a spokesman for Reid, Jim Manley, rejected that notion, saying the necessary cloture votes would chew up time on a Senate calendar already under duress from healthcare and jobs bills.
You can blame the Democrats for not employing the kind of obstruction during the Bush years that the Republicans are employing now, but that is the wrong way of thinking about this. The Democrats behaved as a minority party should behave. They chose a few judges to make a stand on, but they didn’t waste time on most of them. If they were going to be confirmed, the Democrats didn’t prevent them from getting a vote or force delays for delay’s sake.
Our current problem with judicial nominees is a legacy of the civil rights era as well as the emergence of the feminist movement. Because Congress was incapable of doing what was right on Jim Crow and women’s rights, the courts intervened. As a result, the appointment of judges became completely politicized, with both parties wanting to know how judges would rule on hot button issues before agreeing to confirm them. Of course, this didn’t happen right away:
The confirmation process is less about the Supreme Court (let alone the nominee) than about the politics of the moment as reflected, however clumsily, in the questions the senators choose to ask. The transcript of a Supreme Court confirmation hearing is really a document of social and political history. For example, John Paul Stevens, nominated to the court in December 1975, nearly three years after the court’s decision in Roe v. Wade, was the first post-Roe nominee, yet he was not asked a single question about abortion. That shows us that abortion was simply not a hot-button political issue in the mid-’70s—it was still waiting quietly in the wings for eventual capture by the right.
Obviously times have changed.
When John Paul Stevens was nominated by a Republican president, a Democratic Senate confirmed him in 16 days. Byron White took only 12.
It used to be that judicial nominees were vetted for character and qualifications, but not too much for ideology. That worked as long as the courts didn’t attempt to resolve pressing social problems that Congress was incapable of addressing themselves. That’s what the Republicans mean when they talk about activist judges “legislating from the bench.” In a real sense, that is what the court did on the desegregation of schools and abortion rights. In an ideal world, Congress would have taken the lead on those issues. Unfortunately, the world couldn’t wait.
So, now we have this system where the courts are little more than a way to fight political battles by other means. And, in that fight, the Republicans are much more motivated and focused than the Democrats.
