Bickering Over Judicial Nominations

Posted on Aug 11, 2010

By Ruth Marcus

Elena Kagan, no surprise, did not live up to the Kagan standard of openness in answering questions during her confirmation hearing. Mitch McConnell did not live up to the McConnell standard of deference in voting against her.

The McConnell standard? I’d never heard of it, either, but in a recent session with reporters, the Senate minority leader mentioned that he had once written a law review article outlining the respect the Senate should show to a president’s choice of Supreme Court nominee. The Kentucky Republican sounded wistful, almost sheepish, as he acknowledged how far the Senate, himself included, had departed from the standard he once set out.

“It will always be difficult to obtain a fair and impartial judgment from such an inevitably political body as the United States Senate,” McConnell wrote in the Kentucky Law Journal. “However ... the true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being.”

That was 1971, when McConnell was a young staffer for Kentucky Republican Sen. Marlow Cook and the Senate had just rejected two of President Nixon’s Supreme Court nominees—Clement Haynsworth and G. Harrold Carswell before finally confirming Harry Blackmun.

But times have changed—and not for the better. The deterioration has been both sudden and precipitous. “I voted for Breyer and I voted for Ginsburg, and I applied the standard that I had written in my law journal article in 1971, that basically the president won the election and if the person was not mediocre or obviously unqualified then we ought to have a less assertive role,” McConnell said at a breakfast sponsored by the Christian Science Monitor.

Justice Stephen Breyer was confirmed by a vote of 87 to 9. Justice Ruth Bader Ginsburg was confirmed 96 to 3. As recently as 2005, Chief Justice John Roberts was confirmed 78 to 22, with the support of 22 Democrats and one independent. 

Today, those votes seem quaint artifacts of a more genteel era. The Supreme Court confirmation process has been degraded into a partisan political fight, in which senators of each side line up, with a few odd defections, with their own party. Justice Samuel Alito received only four Democratic votes. Sonia Sotomayor had the backing of just nine Republicans. Kagan got only five.

The debate about who is to blame for this unhealthy state of affairs is as tangled and as contested as any tribal battle over territory. Republicans argue that Democrats fired the first shot with filibusters of lower court nominees. Democrats say they were forced to extreme actions by the extremeness of George W. Bush’s judicial nominees, and that in any event Republicans have since taken it up a notch. Or several.

I find the whiny, they did it first debate as unconvincing from bickering senators as it is from bickering children. I don’t care who started it. What concerns me is the corroded state of the confirmation process and the prospect of worse to come.

I’m not advocating the McConnell standard, which is overly deferential to the president and does not give senators enough leeway to consider ideology and the court’s overall balance. But the current approach—of near automatic opposition to the other party’s nominee—goes too far the other way.

Voting against Robert Bork was one thing; voting against Elena Kagan quite another. Bork’s judicial philosophy was demonstrably outside the mainstream. There is nothing in Kagan’s background that came close.

The next, disturbing step is apt to be an all-out filibuster of a Supreme Court nominee. It may seem impossible to believe in the current, 60-votes-to-take-a-lunch-break environment, but even a nominee as controversial as Clarence Thomas was not subjected to a filibuster. I am not unalterably opposed to filibustering judicial nominees, but the tactic should be reserved for extraordinary circumstances.

“The process has become more political,” McConnell acknowledged. “But Senate Republicans didn’t set the standard. Senate Democrats ... put us in the position that we’re in, and it’s very hard for me to make the argument to my members, this new standard having been established, you should ignore it.”

Or, as he told me after the breakfast, “We are where we are.”

Actually, we are only where we are because senators—on both sides—who know better have chosen not to speak out. It’s too tempting not to quote McConnell again: “The true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being.”

Ruth Marcus’ e-mail address is marcusr(at symbol)washpost.com.

© 2010, Washington Post Writers Group

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