All’s Fair in Love and War… and Judicial Appointments

Back in the mid-2000s, when I was just a teen, I remember being righteously indignant about the use of the filibuster to block judicial nominees like Miguel Estrada and Janice Rogers Brown. At the time, it was just so obviously ‘wrong’ and ‘unfair’ to deny Bush’s nominees an up-or-down vote.

That was from 2003-06, when there was an R president and R Senate majority. Since then, we’ve had an R president and D Senate from 2007-08, a D president and D Senate from 2009-14, and a D president and R Senate from 2015-present. Living through all the possible permutations has convinced me that there truly is no principled stance on the filibuster or judicial nominations.

Does anyone really believe that Democrats would have confirmed any Bush appointee to the Supreme Court had Ruth Bader Ginsburg suddenly died in February 2008? And does anyone really believe that Republicans would not have been totally outraged by that turn of events? When it comes to filibusters and judicial appointments, no honest man in politics exists.

Yes, Republicans absolutely should be trying to block any appointment until a new President is elected. And yes, Obama absolutely should try to get through an appointment by stealth in his final year. Neither side has any good reason for moral indignation about the other side’s posture. Fairly or unfairly, control of the Supreme Court has simply become too important for stupid little things like customary norms to matter anymore.

And those customary norms aren’t quite as normative as you’d think. Liberal blather to the contrary, leaving a seat vacant for a year is not unprecedented. Not even half a century ago, Democrats kept a seat vacant for thirteen months during 1969-1970. Go back further and you’ll find guerilla warfare over the Supreme Court that makes anything from the 20th century look tame.

Congress hated Andrew Johnson so much that it actually reduced the number of Supreme Court Justices to prevent him from filling either vacancy that happened during his term. Congress allowed a seat to remain unfilled for over two years during the Tyler and Polk administration. And in 1811, the entire Supreme Court term was actually cancelled when James Madison was unable to get someone appointed, and the Court lacked a quorum to do business.

There’s not only precedent for keeping seats open in truly jarring situations. There’s also precedent for filling them in truly jarring situations. In 1841, Justice Philip Barbour died exactly one week before William Henry Harrison’s inauguration. The outgoing president, Martin Van Buren, had been decisively rejected in the presidential election. He still forced through an appointment – a friendly Senate approved his choice of Peter Daniel less than 40 hours before Van Buren’s term ended.

You can be angry at either Obama or the Senate Republicans, but at least be honest enough to realize that there is no political morality here, and that you’d be doing the exact same thing if you were in their shoes.

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