Bench Memos

Judge Wilkinson’s Lament

In an op-ed today in the Washington Post, Fourth Circuit judge J. Harvie Wilkinson III decries the Senate’s abolition of the filibuster for judicial nominees. That abolition, he laments, means that “even those with the most rigid and absolute beliefs can spend a lifetime on the federal bench without a scintilla of bipartisan support.”

Wilkinson is obviously correct that the abolition of the filibuster will make it possible for nominees to be confirmed on a purely partisan basis (when, that is, the Senate majority and the president are of the same party). That, unfortunately, does open the door wider for genuine “[i]deologues”—those, for example, who lack “judicial dispassion” and who “[t]ak[e] disagreements personally.” But there are plenty of other political factors (including the costs of even a successful confirmation battle—see point 3 here) that will tend to deter a president from selecting such ideologues. Indeed, the high praise that Wilkinson offers for his colleagues who were appointed by President Clinton—before the filibuster became legitimized as a weapon—undercuts his argument.

Further, the new Senate rule has a major upside that Wilkinson—given his own contentious confirmation battle back in 1984 (a battle that his op-ed doesn’t mention)—ought to appreciate, as it will make it much easier for a good Republican president, with a Republican majority in the Senate, to appoint outstanding judges.

Indeed, I have to wonder whether Wilkinson himself would ever have been confirmed if the standard that he now advocates had been widely accepted at the time of his nomination. I wasn’t following judicial confirmations closely back then, so my knowledge of his confirmation process is sketchy, but from a quick review of newspaper articles I gather that he was an especially controversial nominee who triggered an extraordinary filibuster effort.

In a Senate composed of 55 Republicans and 45 Democrats, the first cloture motion on Wilkinson’s nomination obtained only 57 votes, three short of the 60 needed. Cloture on his nomination was ultimately obtained (with 65 yes votes), and he was confirmed by a 58-39 margin—with what I guess qualifies as a “scintilla of bipartisan support.” Had the idea of filibustering a judicial nominee not still been so controversial, it seems doubtful that he would ever have been confirmed.

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