Liberal and conservative interest groups are already gearing up for a battle over President Bush’s nomination of Judge Samuel Alito to be an associate justice of the Supreme Court. Within minutes of the Alito announcement, the television and radio airwaves were flooded with the views of interest-group leaders such as Ralph Neas and Jay Sekulow. We’ve beenwarned that we should brace ourselves for Armageddon over this nominee.
Democratic senators are under tremendous pressure to yield to the demands of these interest groups, which have called for a filibuster to prevent an up-or-down vote on Judge Alito. Senators should not take the bait.
The filibuster has only recently become a tool to block judicial nominees, and has never allowed a minority of senators to stall a Supreme Court nomination. Supporters of a filibuster against Judge Alito might point to the unsuccessful nomination of Abe Fortas as chief justice in 1968, but the example is unpersuasive. That nomination ultimately failed because Fortas was unable to muster even a bare majority of senators to support his appointment. Even so, a single instance of invoking the filibuster against a Supreme Court nominee in over 200 years is hardly strong support for using it today.
Aside from the lack of historical support, Majority Leader Frist has threatened to retaliate against a filibuster by invoking the “nuclear option,” which would alter the rules of the Senate so that a simple majority could close debate on a judicial nominee. In order to avert an earlier crisis over appellate-court nominees, 14 senators, otherwise known as the “gang of 14,” agreed to support a filibuster against judicial nominees only in “extraordinary circumstances.”
The nomination of Judge Alito comes nowhere close to meeting that standard. No one has raised doubts about Judge Alito’s qualifications.
Aside from serving as a distinguished appellate judge for approximately 15 years, Alito has argued a dozen cases before the Supreme Court and has served as the highest-ranking federal law-enforcement official in New Jersey. Both liberal and conservative academics have called his approach to deciding cases measured and methodical, recognizing that he adheres closely to established precedent. In other words, he is a mainstream conservative jurist that has shown great respect for the rule of law.
Even if the nuclear option is not invoked, however, the filibuster would still risk the “mutually assured destruction” of judicial nominations. We have an aging Supreme Court, with seven of the nine current members over 65. If history is any guide, we will have a number of retirements over the next decade. Therefore, numerous opportunities will arise in the coming years to change the intellectual direction of the Supreme Court. It is possible that Republicans will retain their majority in the Senate and control of the presidency, but it is far more probable that Democrats will wrest control of at least one, or even both, of these institutions at some point in the next decade. A successful filibuster against Judge Alito will unquestionably lead to the same obstructionist tactics being employed against the Supreme Court nominees of Democratic presidents.
Use of the filibuster against Judge Alito will only ensure that similarly qualified candidates, with lengthy and distinguished judicial records, will be deprived of the opportunity to serve our country on the Supreme Court. Instead of nominating distinguished jurists, presidents will turn to stealth candidates like Harriet Miers to avoid a filibuster or a bitter, protracted fight over nominees with a paper trail. If nothing else, the Miers debacle has shown us that Americans feel far more comfortable supporting well-qualified nominees with a track record.
It may be overstating the case to say that we are headed toward Armageddon with this judicial nomination. Nonetheless, employment of the filibuster against Judge Alito will be the first strike toward damaging our judicial confirmation process. Our senators should think carefully before pushing that button.
– David Stras is an associate professor of law at the University of Minnesota. He writes in the area of Supreme Court reform, and is a former law clerk to Justice Clarence Thomas.