Although war with Iraq has seized the international spotlight, the Senate’s battles over judicial nominees recently put the chamber at the center of national politics. In February, when Senate Democrats began a filibuster opposing the confirmation of Miguel Estrada to the Sixth Circuit Court of Appeals in D.C., the Senate seemed transported back to a time when it was dominated not only by fierce policy wars, but by strategic parliamentary maneuvering as well. Republicans failed to garner the 60 votes necessary to bring the confirmation to a vote on the Senate floor, where they would have won. The heated debates also furthered the growing perception that the judicial branch is no longer separate from the politics of Capitol Hill.
West Virginian Robert Byrd, the most senior senator and a Democratic stalwart, gave the filibuster an authentic feel when he began reminiscing about the courtship of his wife—his high school sweetheart—and the bluegrass country of his childhood. But serious issues were at stake. The heated debates over Estrada’s nomination to the second most powerful court in the nation offered a prelude to what will surely be an acrimonious fight over Supreme Court nominations.
The filibuster also brought up an important question: what is the role of politics in the nomination (by the president) and confirmation processes (by Congress), and how should the two elected branches of government interact with the judiciary?
Republicans said during the weeks-long filibuster that Estrada, a Washington-based lawyer who has argued 15 cases in front of the Supreme Court, been the editor of the Harvard Law Review, and graduated from Columbia College (Magna Cum Laude), was professionally qualified to serve on the D.C. Court. They also asserted that his ideologies should not play a role in the confirmation process. In effect, they were saying that Bush nominated Estrada, he is qualified, and that should be that.
The Republicans’ first claim went relatively undisputed. But their second—that “judicial ideology” should not play a role in the confirmation process—was, and remains, the crux of the issue. Columbia University Professor of Law Jack Greenberg, who argued for the plaintiff in Brown v. Board of Education before the Supreme Court in 1954, pointed out that ideology supersedes qualifications in confirmation battles. “I guess you could nominate somebody who is illiterate or didn’t go to law school…that’s not likely to happen, so you are talking about ideology almost inevitably,” he said.
The line between politics and constitutional analysis is a blurry one. Judges’ interpretations of the commerce clause and the “necessary and proper” clause, for instance, greatly affect their decisions about the federal government’s power to enact social and economic policy. The make-up of our Judiciary, then, is not only of great import, but it is a highly political question.
When Utah Senator Orrin Hatch, the Republican Chairman of the Judiciary Committee, spoke at Columbia about judicial confirmations, he said that politics shouldn’t play a role in the process. But if, as he demands, the Senate were to ignore issues of politics and ideology, the courts would be no less political—their politics would simply be dictated by the White House.
Publicly considering a nominee’s ideological and political positions, while perhaps damaging to the idyllic perception that America has long held about the objectivity of the judiciary, is pragmatic and necessary. It is the only way to avoid extremist judges.
The paramount example of contentious political debate in the confirmation process came in 1987, when the Democratically controlled Senate held hearings over Ronald Reagan’s Supreme Court nominee Robert Bork. Bork’s credentials were far more impressive than Estrada’s, but his politics were, in the eyes of many, far to the right of the political mainstream. His “strict constructionist” understanding of the Constitution would not have allowed for civil rights legislation, progressive economic policies, or basic rights to privacy.
Bork’s nomination led to violent debate on the Senate floor and across the country. When the dust had settled, Democrats succeeded in defeating Bork’s nomination 58-42, and Republicans settled for the much less polarizing Anthony Kennedy. Had the Democrats not considered Bork’s ideology, the most extreme dissents of Justices Scalia and Thomas would now likely be majority opinions.
Miguel Estrada, unlike Bork, has almost no paper trail. He has neither been a professor of law nor written articles, as did Bork. He has never served as a lower-Court judge or written opinions. And herein lies the support for the Democrats’ principle assertion: while Estrada may be professionally qualified, we know almost nothing about his judicial ideology—and he has categorically refused to answer questions about it. Without that information, he cannot be confirmed; the Senate should not, Democrats rightly say, act as a rubber stamp for Bush’s nominees.
Greenberg believes that with so little information about Estrada, demanding 60 votes for confirmation is legitimate: “It’s not standard, but I would say that for somebody whose record is opaque, you should require it.”
Bush’s unilateral approach to foreign policy is replicated in his treatment of Congress, say both Republicans and Democrats. As long as information about nominees remains elusive, Democrats are right to adopt an obstructionist approach. Acknowledging the political realities of the nomination and confirmation processes, and demanding that nominees’ records be scrutinized by those on both sides of the aisle is not only good politics. It’s good governance.