Enough Handwringing Over Judicial Vacancies

It is hard to feel sorry for the Obama Administration over their claims that Republicans have created excessive delays for judicial confirmations, particularly in regard to the D.C. Circuit.

It may be true that the Senate has been slow in confirming President Obama’s picks to the federal bench. And it may even be true that the Senate has failed to confirm some qualified nominees. But this is simply liberal chickens coming home to roost. 

Democrats opened the floodgates to partisan fighting over judicial nominees when they used outrageous tactics to stop Robert Bork from being appointed to the Supreme Court in 1987. Bork was one of the most qualified nominees to the Court in our lifetimes — he was a judge on the D.C. Circuit, a former solicitor general, and a distinguished legal scholar. His contributions to legal thinking in the fields of both antitrust law and constitutional interpretation were profound. Democrats, led by Senator Ted Kennedy, opposed him purely on ideological grounds, because they rejected Bork’s theory of interpreting the Constitution according to the original intent of the Framers.

By stopping Bork, liberals turned the judicial confirmation process away from qualifications and toward politics. Liberals have continued to oppose Republican nominees for both the Supreme Court (remember the Roberts and Alito hearings) and the lower courts (recall the meritless opposition to Miguel Estrada for the D.C. Circuit) solely on the grounds of ideology ever since. They thus have no standing to complain about the treatment of Obama’s picks until they “confess error,” as they say at the Supreme Court, and concede that their opposition to Bork was a mistake. When they begin to consider Republican nominees solely on their merits, we can start returning the favor.

  1. Conor Friedersdorf
    C

    This seems to frame American politics as a contest between liberals and conservatives, where turnabout is fair play. What about those of us who identify with neither the conservative tribe nor the liberal tribe, care little for their history of D.C. centric pissing matches, and would prefer a functioning government where, for example, important spots on the federal bench are filled for the good of the country, rather than left vacant, harming the country, until liberals apologize for blocking Robert Bork?

    Judges should always get up or down votes, regardless of what party is in power. That should be the deal, and making it shouldn’t require any apologies to smooth over the grievances and hurt feelings on either side. That should be the deal because it’s fair, in accordance with the Constitution, and best for the country going forward. Proposing apologies for decades old events as a prerequisite for reform elevates partisan hurt feelings over Constitutional design and prudent governance. That is to say, it illustrates perfectly why most Americans hate partisanship.

  2. Bryan G. Stephens

    Exactly right, John. This is one area where I side is fighting the war not rolling over.

    Conor, we cannot pretend there are rules to the fight when the other side ignores them. If they are going to knife fight, we cannot go in there unarmed. This is not fistacuffs, this is a fight for the soul of America.

    Liberalism and Americanism cannot coexist. One side or the other will win.

    I would like it to be our side.

  3. Conor Friedersdorf
    C
    Bryan G. Stephens: Exactly right, John. This is one area where I side is fighting the war not rolling over.

    Conor, we cannot pretend there are rules to the fight when the other side ignores them. If they are going to knife fight, we cannot go in there unarmed. This is not fistacuffs, this is a fight for the soul of America.

    Liberalism and Americanism cannot coexist. One side or the other will win.

    I would like it to be our side. · 3 minutes ago

    I didn’t suggest “going in unarmed.” I suggested a deal whereby all judges get an up or down vote. Also, there’s been a liberal faction in America from the beginning. Evidently, Liberalism and Americanism can co-exist. Finally, I draw your attention again to John Yoo’s condition for a deal: an apology for Robert Bork.

  4. Ryan M
    Conor Friedersdorf: until liberals apologize for blocking Robert Bork?

    That is to say, it illustrates perfectly why most Americans hate partisanship.

    First, most Americans hate being accused of partisanship, but are perfectly content to engage in it. 

    Second, the issue is not “hurt feelings,” as you claim.  What John is getting at with “concede that their opposition to Bork was a mistake” (that is a direct quote)…  is that it is pointless (and damaging) for us to take the high ground while they continue to engage in partisan politics for judicial appointments.  All that will mean is that liberal judges get appointed with no opposition, while conservative judges get harassed out of the nomination process.  This will only result in more a more partisan-liberal judicial branch.

    John is talking about the liberal hand-wringing over the issue.  Essentially: “Until you guys stop your practices, don’t expect much sympathy when we respond in kind.”

    John did not say “an apology for Robert Bork.”  The final line of his post very nicely summarizes what John is saying.  I feel like you may be missing that point.

  5. Bryan G. Stephens
    Conor Friedersdorf

    Bryan G. Stephens: Exactly right, John. This is one area where I side is fighting the war not rolling over.

    Conor, we cannot pretend there are rules to the fight when the other side ignores them. If they are going to knife fight, we cannot go in there unarmed. This is not fistacuffs, this is a fight for the soul of America.

    Liberalism and Americanism cannot coexist. One side or the other will win.

    I would like it to be our side. · 3 minutes ago

    I didn’t suggest “going in unarmed.” I suggested a deal whereby all judges get an up or down vote. Also, there’s been a liberal faction in America from the beginning. Evidently, Liberalism and Americanism can co-exist. Finally, I draw your attention again to John Yoo’s condition for a deal: an apology for Robert Bork. · 25 minutes ago

    Leftism, i.e. collectivism, was not here at the founding. Liberalism used to me being pro-freedom. Not any longer.

  6. DocJay

    A complete ignorance of the progressive conspiracy to dismantle the United States describes most of our journalists. Complicit describes the rest. Obama activism should be fought at every turn.