These differences are, I believe, the primary reasons judicial nominations generally are much more controversial than in the old days. To be sure, tough fights over judicial nominations are not new. Indeed, President Nixon's 1969 nomination of Clement Haynesworth to the Supreme Court sparked a colossal battle. So did Nixon's nomination the next year of G. Harrold Carswell to the high court. Neither appointee was confirmed.
But fights over judicial nominations were generally less bitter and divisive than those of today. And many more nominees were perceived by members of both parties as within the mainstream of legal thought and as neither overtly partisan nor ideologically rigid. As a result, most nominations sailed through the Senate.
Obviously, presidents have always sought to put like-minded people on the federal bench. And a nominee perceived as mainstream by a liberal might well be seen as a dangerous radical by a conservative -- and vice versa. But even though Congress is certainly more deeply divided and more partisan today than a quarter-century ago, I would argue that the nature of judicial nominations has changed as well, exacerbating the bitterness and the inflexibility that each party is now demonstrating. The Senate is being more partisan because the nominations sent its way are more partisan.
Presidents now nominate would-be judges whom they foresee advancing their administration's policy agendas, not simply interpreting the law in a way that would seem fair to a majority of eminent lawyers, judges, and legal scholars.
Today, Senate Democrats are denying 15 Bush judicial picks the right to have an up-or-down floor vote on their nominations, in violation of what a majority of Americans see as basic fairness. Yet the same polls show that forbidding the use of filibusters against judicial nominees is also viewed as unfairly changing the rules in the middle of the game. So, each party can fairly claim to have public opinion on its side.
Not too long ago, however, Senate Republicans were equally guilty of wrongly denying 62 Clinton judicial nominees even the basic right of a hearing before the Senate Judiciary Committee. As in the fabulous Tom Wolfe book The Bonfire of the Vanities, finding a good guy in this fight is difficult. Both sides look pretty smarmy, if not downright hypocritical.
So how do we go back to a system of nominating people with broad-based, mainstream appeal and guaranteeing that every judicial nominee gets voted upon, regardless of the party of the president and regardless of which party controls the Senate? The truth is, it may be impossible to put the genie back in the bottle.
But here is one solution that neither side will like:
First, adopt Senate Judiciary Committee Chairman Arlen Specter's resolution 327 from April 2004. It calls for a strict timetable for Judiciary Committee investigations into judicial nominees, hearings, and an up-or-down committee vote, with a limited number of extensions; if a nomination is sent to the Senate floor, it requires an equally strict timetable for debate and an up-or-down vote, again with a limited number of extensions and no allowance for filibusters. Today, Democrats, liberals, and Senate traditionalists can be expected to cry bloody murder at this suggestion, just as Republicans would have in the Clinton era.
Second, the Specter procedural change should be coupled with a requirement that a judicial nominee must get the votes of 60 senators to be confirmed. Such a steep requirement would prod presidents to nominate men and women who are able to draw support from both sides of the aisle -- a shift that Republicans today, and Democrats in the not-too-distant past, would hate, as would those who jealously guard presidential prerogatives.
The first of these changes would advantage the executive branch; the second, the legislative. The first, the majority party; the second, the minority party.
The combination would force presidents to nominate mainstream and broadly acceptable people to the federal bench and would force the Senate to act expeditiously. And it just might reduce the bitterness and divisiveness in the Senate.