Byron York reports on another ambush by Senate Democrats of a Bush judicial nominee. This time the victim is Dennis Shedd, who has been nominated to the United States Court of Appeals for the Fourth Circuit and has served as a federal district court judge for more than ten years. According to York, Senator Leahy had promised that the Shedd nomination would get through the Judiciary Committee, but changed his mind after “civil rights” groups increased their attacks on Shedd. Imagine that.
Meanwhile, Michael Kinsley contends that Senators should oppose judicial nominees with whom they disagree over ideology and/or judicial philosophy. According to Kinsley, this will force presidents to compromise with Congress, leading to the appointment of moderate judges. Does anyone recall Kinsley making this argument when a Democrat was President and the Republicans controlled the Senate? I don’t.
On the merits, Kinsley’s approach has superficial appeal. And Republicans eventually could probably live with it since, in the future, the Republicans are at least as likely to control the Senate as the White House. However, there are sound objections to a regime in which Republican presidents may be unable to appoint mainstream conservative judges and Democratic presidents may be unable to appoint mainstream liberals. First, Kinsley’s assumption that presidents will compromise with Congress is questionable. In some situations, presidents may well hold out for nominees who share their philosophy, while hoping that control of the Senate will pass to their party and using recess appointments to fill some vacancies. Second, in Kinsley’s world the permanent federal judiciary will tend to be comprised disproportionately of judges appointed during periods of ascendency by one party. For example, in the year 2020, an unusually large percentage of judges may be appointees from 2011-2013. It seems better to have judges, liberal and conservative, who reflect organic shifts in political trends over time. Third, there don’t seem to be a lot of high quality “moderate” judicial candidates out there today. Most top lawyers and legal thinkers have strongly held beliefs and are either liberals or conservatives. This is particularly true of those who are likely to sponsored for appointment to the federal bench. Typically, these individuals are friends of the senator from their state (nowadays almost invariably a liberal or a conservative senator) or people who have come to the attention of the president’s top lawyers through service to the party or its favorite causes. Would we be better off with a Supreme Court made up of nine non-opinionated hacks or a Supreme Court divided roughly equally between top-notch liberals and conservatives? I’d prefer the latter.
Finally, a system where judicial nominees are vetoed or approved largely on straight party line votes would tend to de-legitimize the judiciary in the public’s mind. Courts decide many of the most divisive issues we face as a society. Their decisions need not, and should not, end public disagreement over these matters. However, the decisions must be accepted at some level or else the rule of law will fail. To some extent, federal judges are political creatures and should be viewed as such. But it is not healthy if they are viewed as nothing more than political creatures. The regime that Senate Democrats seek to impose, and that Michael Kinsley now applauds, will foster that perception and thus go too far in undermining public confidence in the federal judiciary.
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