Justice or the Peace?

Carl Hulse, Confirmation Bias: Inside Washington's War Over the Supreme Court, from Scalia's Death to Justice Kavanaugh

To those of us who followed Justice Brett Kavanaugh’s confirmation hearings, it looked like nothing we’d ever seen before. But this was an illusion, created by partisan blinders. Though it was more extreme, more fraught, and more acrimonious than any prior Supreme Court confirmation, it was consistent with court nominations since the turn of the millenium. It helps to have seasoned observers to contextualize these events for us.

Carl Hulse, chief Washington correspondent for the New York Times, has spent his career documenting partisan horse-trades, including federal court appointments. Once a rubber-stamp process with minimal impediments unless a nominee had serious problems (Hulse cites Robert Bork’s nomination), federal judgeships have become more contentious since the early 2000s. What happened, then, and why the abrupt change in practices? You may not like the answer.

Senate Democrats took deep exception to George W. Bush’s federal appointees. When Democrats controlled the Senate, they took unprecedented steps to obstruct appointments; when they lost the Senate, Democrats performed the first-ever filibuster against an Appeals Court appointee, Miguel Estrada. The fight over Estrada’s appointment became so bitter that it literally cost human lives: Estrada’s wife miscarried, then died, during the Senate fight.

Therefore, when Justice Antonin Scalia unexpectedly died in 2008, creating a vacancy, Republican Senator Mitch McConnell, vacationing in the Caribbean, made the hasty declaration that nobody would receive a hearing for Scalia’s seat. In McConnell’s mind, he was only doing what Democrats would’ve done, were they in power. This read wasn’t entirely unfair, since McConnel’s decision was a more extreme iteration of what Democrats had actually done.

In Hulse’s telling, this reflects the pattern in judicial nominations for over twenty years now. One party, formerly in the minority, gains the majority and changes the rules to limit minority power. Then that party returns to the minority, carried by ever-shifting political winds, and finds themselves constrained by the rules they previously wrote. The new majority, meanwhile, makes new, even more restrictive rules. And the circle of life continues.

Carl Hulse

Many of these rules changes apply to filibusters. Minority Democrats used filibuster rules to hinder Republican court appointees, sometimes literally for years. (The ghost of Miguel Estrada looms over court appointments in Hulse’s narrative.) Gaining the majority, Democrats changed Senate rules to stop filibusters of most federal court appointees, then quickly lost the majority. Now, holding a narrow majority, some want to kill the filibuster altogether. Some people never learn.

Because it isn’t just Supreme Court nominees who received this treatment, though only those nominees tend to command the 24-hour news cycle. Rules governing federal judge appointments throughout the system have been altered, granting judges lifetime appointments over the objections of home-state Senators and other traditional procedural hurdles. Some of these rules changes have probably remade American courts for the next full generation.

Hulse centers his narrative on three Supreme Court nominees: Merrick Garland, Neil Gorsuch, and Brett Kavanaugh. All three nominees were flawed, in some ways, from Garland’s centrist record and unexciting personal style, to serious criminal accusations against Kavanaugh. Yet what matters for Hulse is that, in all three cases, Senators changed the rules. All three nominations granted more power to the majority, and the effects cascaded throughout the federal courts.

Because of publishing’s long lead times, this book dropped before Amy Coney Barrett became a national phenomenon. But Hulse name-checks her twice, as someone considered an up-and-comer in the federal judiciary. Hulse also acknowledges that everyone knew the Merrick Garland trainwreck was explicitly partisan: he quotes several Senators admitting that, should another vacancy occur in President Trump’s final year, Republicans intended to fill it.

We who watched these nominations unfold on television and online, often got a heated, partisan, contradictory narrative. Monday’s journalism would often be superseded by Wednesday. Hulse retells the events in ways that exclude fleeting scuttlebutt and mass-media clutter, putting the story of these three tumultuous years into a context that makes sense. He also excludes the partisan lens-grinding that distorted unfolding events for many news junkies, including me.

Perhaps most importantly, though he denies both parties are equal, Hulse demonstrates with evidence that both parties are complicit in the current catastrophe. Partisan brawling in Congress has turned the federal judiciary into a political football, making justice harder to dispense. And when Democrats currently (as I write) suggest changing the rules to overcome inertia, they’re basically strategizing how to sneak up behind themselves and pick their own pockets.

Partisan wrangling has essentially made America less free, because we have fewer rules.