As part of their drive to overturn the welfare, regulatory, and social advances of the last 75 years, Republicans have sought to tilt the federal courts far to the right. As Ronald Reagan's Attorney General Edwin Meese understood, stacking the courts could "institutionalize the Reagan revolution so that it can't be set aside no matter what happens in future presidential elections." If current Majority Leader Bill Frist's threats are to believed, the Republicans are about to endow themselves with an unprecedented power to complete this quest, removing via the "nuclear option" the Democratic minority's last resort in moderating their extremist judicial selections: the filibuster.
The Framers of the Constitution knew that they were creating a powerful, independent institution -- one tasked with checking the other two branches. To ensure that independence, the Framers designed a system that allows the president to nominate a judge, but subjects the nomination to approval by the Senate. With judges allowed life tenure and near-immunity from impeachment, the decision to confirm a federal judge is effectively irreversible and very long lasting. Today the average tenure of a federal judge is approximately 24 years, or six presidential terms; judges appointed in their 30s or 40s can serve for much longer. Mistakes or misjudgments about a nominee's fitness cannot be remedied; there can be no second thoughts.
Few, if any other Senate actions have this irreversibility. Legislation can be amended or repealed. A nonjudicial appointee will leave office sooner or later, and usually when the president leaves. And if a judicial nominee is not confirmed, there are more than enough other aspirants. Only a judicial confirmation has this unique combination of power and untouchable longevity.
It is thus essential that judicial nominations command widespread approval, and this is why the Senate is given what Senator Robert Griffin, leader of the 1968 filibuster against Abe Fortas' nomination to be chief justice, called "the other half" of the power to appoint judges.
Senate rules and practices since the early 1800s have confirmed the institution's counter-majoritarianism. Both Republicans and Democrats have invoked this protection, especially when the other party controlled both the presidency and the Senate. In such circumstances, protection for the minority with respect to judicial nominations becomes especially important, for senators rarely oppose their own party's judicial nominations.
Traditionally, the filibuster has not been the only weapon in an opposition party's arsenal. There are other, less visible ways whereby the Senate's rules and traditions empower individual senators to block judicial and other nominations. Between 1996 and 2000, Republicans in control of the Senate developed these techniques to a high art.
Prior to 1996, when the Senate majority and the president were from opposing parties, senators usually deferred to the president with respect to lower-court judicial nominations. With the notable exceptions of the 1968 Fortas nomination and a failed Republican filibuster of H. Lee Sarokin in 1994, neither party filibustered the other's judicial nominations, and virtually all nominees received a hearing unless they were sent up after the presidential nominating conventions.
All this changed in 1996. Rather than openly challenge President Clinton's nominees on the floor, Republicans decided to deny them Senate Judiciary Committee hearings. Between 1996 and 2000, 20 of Bill Clinton's appeals-court nominees were denied hearings, including Elena Kagan, now dean of the Harvard Law School, and many other women and minorities. In 1999, Judiciary Chairman Orrin Hatch refused to hold hearings for almost six months on any of 16 circuit-court and 31 district-court nominations Clinton had sent up. Three appeals-court nominees who did manage to obtain a hearing in Clinton's second term were denied a committee vote, including Allen R. Snyder, a distinguished Washington lawyer, Clinton White House aide, and former Rehnquist law clerk, who drew lavish praise at his hearing -- but never got a committee vote. Some 45 district-court nominees were also denied hearings, and two more were afforded hearings but not a committee vote.
Even votes that did occur were often delayed for months and even years. In late 1999, New Hampshire Republican Bob Smith blocked a vote on 9th U.S. Circuit Court of Appeals nominee Richard Paez for months by putting an anonymous hold on the nomination. When Majority Leader Trent Lott could no longer preserve the hold, Smith and 13 other Republicans tried to mount a filibuster against the vote, but cloture was voted and Paez easily confirmed. It had been over four years since his nomination.
When his tactics on the Paez and Marsha Berzon nominations (Berzon was filibustered along with Paez, more than two years after her nomination) were challenged, Smith responded with an impassioned floor speech in defense of the judicial filibuster: "Don't pontificate on the floor of the Senate and tell me that somehow I am violating the Constitution of the United States of America by blocking a judge or filibustering a judge that I don't think deserves to be on the circuit court ... . That is my responsibility. That is my advice and consent role, and I intend to exercise it."
The public spectacle that occurred the one time that Republicans did wait for a floor vote to kill a nomination confirmed the untenability of their strategy when openly exposed. Ronnie White, an African American judge from Missouri, was nominated for a district judgeship. He was opposed by then-Senator John Ashcroft, who was hunting for a re-election campaign issue; to support Ashcroft, Republicans voted in lockstep against the nomination. Afterward, some of them claimed they hadn't known White was African American. After the embarrassing fight, one Republican staff member acknowledged that "[I]t's just better to kill them in committee."
But when the Republicans took over the White House in 2001 and the Senate in 2003, things sped up. In 2003, Hatch announced that he would abandon the "blue-slip system" he had insisted on since 1995, whereby a senator could block action on a nominee from his or her home state; North Carolina's Jesse Helms had used this power to block every one of three black candidates to the 4th U.S. Circuit Court of Appeals. Anonymous floor holds were abolished, as was the rule requiring that at least one minority-party senator on the Judiciary Committee must agree to a vote on a nominee if any committee member objects. These rules changes left the Democrats with only the filibuster.
Frist's solution to the current stalemate on judicial nominations is a "simple return to the 200-year of tradition on judges.” Frist's memory and history are obviously selective. It was just five years ago, in March 2000, that Frist himself participated in the filibuster against Paez after Lott finally overrode the Smith hold. In light of the ferocity with which Republicans stonewalled Clinton's nominees, Frist's entire case folds; the 10 nominees filibustered by Democrats hardly compare to the 65 Clinton nominees denied a vote by the Republicans' under-the-radar procedural maneuvers.
There is a way out of this mess: consultation and compromise. But neither the White House nor the Senate Republicans show any interest in meeting the Democrats' concerns halfway; rather, they seem to prefer a fight in the belief that even losing will energize their base. So it looks as if the struggle will continue, with an outcome that neither side can predict -- or may like.
Herman Schwartz is a professor of law at the American University Washington College of Law and the author, most recently, of Right Wing Justice: The Conservative Campaign to Take Over the Courts.