In an essay objecting to the Senate Republican filibuster of three nominees to the D.C. Circuit, New York’s Jonathan Chait contends that Republicans have “adapt[ed] [sic (I think he means adopted)] a novel tactic that essentially nullifies the results of the presidential election.” Chait’s extravagant hyperbole—last I checked, Barack Obama remains president—rests on a series of errors:
1. The “novel tactic” that Republicans have supposedly adopted is to “argue that Obama has no right to alter the existing ideological balance of the courts.”
For starters, there is nothing novel about such an argument. Indeed, it has been a staple of Democratic rhetoric about Supreme Court nominations at least since the Bork nomination in 1987. To cite just one example I’ve quickly dug up, Senator Leahy, in his floor statement opposing the confirmation of Samuel Alito, contended, “This is a crucial nomination, one that can tip the balance of the Supreme Court radically away from constitutional checks and balances and from the protection of Americans’ fundamental rights.”
Opposition to altering the balance of the D.C. Circuit is the only possible explanation for Senate Democrats’ refusal to confirm President George W. Bush’s widely acclaimed nomination of Peter Keisler.
So far as I’m aware, it’s also not true that Republicans have made a general “balance” argument against confirming nominees to all lower courts. Their objection is focused on the D.C. Circuit.
The dichotomy that Chait draws between opposition to the “credentials or ideology of a particular Obama nominee” and opposition to “alter[ing] the existing ideological balance” of the D.C. Circuit is also a false one. It’s entirely reasonable for Senate Republicans to expect that any of the three pending nominees would be a rubber stamp for Obama’s ideological agenda. As Chait himself puts it towards the end of his essay, “Democrats want to nominate judges who share the Democratic legal philosophy, which tends to treat the Democratic policy agenda as constitutional.”
2. Chait asserts that in 2005 “Senate Democrats began dramatically ramping up the use of the filibuster to block George W. Bush’s judicial nominations.” That assertion gets two things wrong. First, it obscures the fact that the Democrats’ filibuster campaign was unprecedented—a radical escalation of the confirmation wars. Second, it was in 2003 that Democrats’ use of the filibuster was most prolific—by my quick count, seven negative cloture votes against D.C. Circuit nominee Miguel Estrada and ten other negative votes against seven other nominees.
By misciting 2005, Chait makes his claim about “what happened next” seem much closer in time to the Democrats’ launch of their filibuster campaign.
3. Chait is also wrong about “what happened next.” By Chait’s account, the “two parties huddled and agreed that Democrats would stop filibustering judges except in the case of ‘extraordinary circumstances.’” That agreement, he contends, “held, more or less, ever since.”
The agreement that Chait refers to is commonly known as the “Gang of 14 Agreement.” Chait doesn’t cite it by that name, for doing so would expose the falseness of his claim that the agreement was broadly between the “two parties.” Nor has the agreement “held, more or less, ever since.” As I discuss more fully in these posts:
a. The Gang of 14 agreement expressly related only “to pending and future judicial nominations in the 109th Congress”—that is, for 2005 and 2006. In other words, the agreement by its own terms stopped having any operative effect at the end of 2006.
b. Senate Democrats who were not signatories to the Gang of 14 agreement never regarded that agreement as somehow limiting their freedom to filibuster judicial nominees. That explains how they voted against cloture on the three pending nominees (Brown, Pryor, and Owen) who were specifically named in the agreement and how in 2006 they voted against, or failed to support, cloture on the nomination of Brett Kavanaugh to the D.C. Circuit.
c. After the agreement expired at the end of 2006, there is no reason that any signatory (much less any non-signatory) would have regarded it as binding. Thus, in October 2007, one Democratic signatory, Senator Landrieu, voted against cloture on the nomination of Leslie Southwick to the Fifth Circuit—a nomination that no one could plausibly claim presented “exceptional circumstances.”
4. Chait claims that “Republicans are now arguing that Obama’s nominating judges to vacancies on the [D.C. Circuit] is illegitimate per se.” If anyone has actually made that argument, I’ve missed it. I think that Republicans are instead arguing that it’s legitimate for them to resort to the filibuster to prevent Obama from turning that court into a rubber stamp for his ideological agenda. There’s plenty of room to oppose the filibuster without misrepresenting Republican arguments.
5. Chait contends that conservative accusations that Obama is trying to “pack” the courts are misplaced because packing means “changing the court’s size in the middle of the game to benefit [an] agenda.” But as I’ve documented, the charge of court-packing is a routine part of political discourse over judicial nominations and has been widely used, with respect to filling existing vacancies, to signify objection to a president’s allegedly picking judges in order to advance his ideological agenda.