By DON ROBINSON
The judiciary, wrote Alexander Hamilton in The Federalist, was not to be feared. Courts have “neither force nor will.” Their job is to apply statutes to the facts of particular situations. But courts have no authority to impose their own will. Congress determines the regime’s will, in statutes. The executive branch enforces it.
Since the founding, events have shown that there is more to the separation of powers than Hamilton’s simple formula allowed. Federal courts have often been at the center of intense political controversy, as when they declared that segregated schools are unconstitutional, or that Congress has only limited power to regulate campaign finances, or that same sex couples have a right to marry, or that their strained interpretation of the equal protection clause can settle the outcome of a presidential campaign.
The authority of courts is a precious resource. Sometimes they can guide us through dangerous thickets. But they must spend their capital prudently.
Because so much is at stake, debates over whom to appoint have often become ferocious. The clamor over President Obama’s nomination of Merrick Garland to replace Antonin Scalia is a case in point. Sen. Mitch McConnell insists that the president erred in making a nomination during his last year in office. He cites no constitutional authority for limiting a president’s power to the first three years of his term. McConnell’s challenge to Obama’s authority will turn out to have been a huge mistake if Republicans, partly as a consequence, lose not only the presidency but control of the Senate as well.
Sheldon Goldman, professor of political science at UMass, is a leading authority on judicial appointments. Working with two colleagues, he recently published a brilliant essay entitled “Writing the Book of Judges.” They detail how the politics of selecting federal judges has gone off the rails over the past two or three decades. Their account focuses not on the Supreme Court but on courts where federal trials originate (district courts) and on those where appeals are heard. These so-called lower courts rarely make national news, but their staffing is of consuming interest to lawyers and, of course, to senators.
For many Republicans, judicial appointments are particularly important. Issues they care about most keenly – things like abortion, same-sex marriage, immigration, religious liberty – are decided in federal courts. That is why Republicans, even more than Democrats, fight hard for control of the judicial system.
Scalia’s death threatened that control, but the situation is even more dire for Republicans in the lower courts. Goldman and his colleagues show that, after Obama’s first term, judges appointed by Republican presidents (Reagan, two terms; GHW Bush, one term; and GW Bush, two terms; a total of five terms) still occupied 52.5 percent of the federal judgeships. Judges appointed by Democratic presidents (Carter, one term; Clinton, two terms; Obama, one term; a total of four terms), held 47.5 percent. By January 2015, two years into Obama’s last term, the advantage had shifted: 55.2 percent were appointed by Democrats, 44.8 percent by Republicans.
A lot of political blood was spilled to reach that tipping point. A key factor was the resort by Democrats to the “nuclear option.”
Until recently, Senate rules required three-fifths of the Senate, 60 senators, to end a filibuster and proceed to a vote. During Obama’s first term, which McConnell famously hoped would be his last, presidential appointments – not only judgeships but also many agencies, like the National Labor Relations Board – were blocked by filibusters.
In 2005 Democrats threatened to change the Senate rules to enable a simple majority to invoke cloture to end filibusters on executive appointments. Most senators, knowing that they could not expect their party to be in the majority forever, trembled at the prospect of changing the rules so drastically. A bipartisan “gang of 14,” led by John McCain and Ben Nelson, crafted a compromise, a “gentlemen’s agreement,” by which the change was restricted to judicial appointments. A filibuster would not be used there except in “extraordinary circumstances.”
There the matter stood until 2015. The nominee in question this time was Patti Millett. Her sterling qualifications were not questioned by anyone during her hearing before the judiciary committee. Republicans, however, saw her nomination as a stalking horse. McCain invoked the “extraordinary circumstances” exception, blocking Millett’s nomination. He had miscalculated the Democrats’ resolve. They changed the rules. Henceforth, a simple majority would be able to end a filibuster on judicial confirmations.
The triumph produced more anxiety than jubilation among many Democrats. Patrick Leahy of Vermont, the respected chairman of the judiciary committee, remembered that Democrats had relied on threats of a filibuster to deflect George W. Bush’s attempt to pack the bench with radical conservatives.
Data collected by Goldman and his colleagues show that more than partisan affiliation matters when a president nominates a federal judge. She also will likely have diversity in mind.
From FDR until Jimmy Carter, no president appointed more than one woman to the federal bench except LBJ, who appointed three. Beginning with Carter, the balance began to shift. Carter appointed 40 women (15.5 percent of all his appointments to the federal bench). Reagan tacked back, appointing just 29 women (8 percent) in eight years. GHW Bush appointed 36, and W Bush, 69 (about 20 percent for each Bush). But it was the Democrats that opened the floodgates. Bill Clinton appointed 108 women (almost 30 percent of his judicial appointments). Obama, in his first six years, appointed 127 (42.5 percent).
The story is similar for African-Americans. The three Republicans appointed 7, 13 and 24 black judges, respectively (Reagan 2 percent and about 7 percent for each Bush). Carter, back in the late 1970s, appointed 37 blacks to the federal bench (14 percent of his appointees); Clinton, 61 (17 percent); and Obama, in his first six years, 57 (over 19 percent).
Clearly the character of the third branch will be one of the principal matters at stake in November.
Don Robinson, a retired professor of government at Smith College, writes a regular column for the Gazette which appears on the fourth Thursday of the month. He can be emailed at drobinso@smith.edu.