LEAHY'S LETTER

Senator Leahy has urged President Bush to avoid a contentious nominations battle over potential Supreme Court vacancies by consulting with Senate Democrats on possible nominees. Today's NYT article on this subject is here. The online commentary has started, with The Junkyard Blog attacking NYT for pro-Leahy bias, Talk Left despairing of a Bush response to this offer (and urging public pressure on this issue, rightly in my view -- read her post!), and Steven at Poliblog claiming that the letter is a sign that Dems are itching for a fight here.

For what it's worth, I think that Leahy has got it right in one sense -- President Bush has made the appointment of conservative judges a campaign issue, and he should be called on that more often than he is, and if he really wants to avoid a SC confirmation battle, he should try to nominate a consensus candidate. The administration's response to Dem objections on Owen and Estrada (now Pryor, probably, as well) hasn't been that encouraging, though; as far as I can see, Bush has seen judicial nominations as an issue that he can use to play to his conservative religious base, and I can't see any reason why he would change that strategy now, all campaign references to being a "uniter, not a divider" aside. Predictably, perhaps, the administration has pushed the argument that majority will should hold sway in the nominations process (ignoring, of course, the lack of majority support for President Bush in 2000), and all along this administration's mantra has been "not to bargain themselves down" or something along those lines, so I think that we can safely predict that President Bush will not attempt to avoid a confrontation with Senate Democrats here. The recent suspicions that Antonin Scalia could be nominated as Chief Justice only confirm that prediction, even though it would be politically tricky to oppose his nomination since he's already sitting on the Court.

One thing in Leahy's letter is clearly wrong, though. Here is the NYT quote:

"The courts are the one part of government people yearn to believe is free of politics," Mr. Leahy said. "That's why the Florida case shook people so much," a reference to the Supreme Court ruling in Bush v. Gore that resulted in Mr. Bush's presidency.

Unfortunately, according to the public opinion data I've seen, Bush v. Gore did not shake "people." People who like Bush generally defend the decision, whereas people who like Gore generally think it is a travesty. Professional legal and political science opinion is mostly against the decision qua decision, although there are those like George Mason's Nelson Lund who argue that the decision was really "no big deal." But out in the public, the only people really shaken by the decision (at least to the extent that you can tell by survey research) were those who believed that Gore was robbed.

Interestingly, people not shaken by the decision were those who had decried "judicial activism" and defended "strict construction" in principle, even though, to my mind, the decision is impossible to justify if you have a general antipathy to judicial activism or a general attraction to "strict construction," whatever that is supposed to mean. Because they liked the result, people who supported Bush bought the arguments that the Court advanced here and were generally more criticial of the Florida Supreme Court's decisions in the case -- even though there were existing laws in place that would have guided such a controversy and provided for Congressional resolution of the dispute over electors (even if these laws were generally untested). It is very hard, if not impossible, to get beneath the partisanship here. But for me, the lesson of Bush v. Gore is that winning makes a retroactive difference with respect to the evaluation of SC reasoning, even for those who piously proclaim their aversion to judicial activism or their attachment to interpretive techniques that tend in the direction of judicial self-limitation.

So, Leahy is right but for the wrong reasons; if President Bush doesn't want a nominations battle, he should work toward finding a consensus candidate. But I'm not sure Bush is interested in a consensus candidate. I think that it is probably unwise to insist on a view that courts should be non-political, at least when they are called upon to adjudicate matters of intense debate and discussion. The distinction between "high politics" and "low politics" as advanced by Jack Balkin is relevant here, though: it's appropriate for courts to be engaged in battles over the politics of principle, but not appropriate for them to engage in the politics of (mere) partisan advancement. And even though I have dismissively described Bush as playing to his conservative base on the issue of judicial nominations, it's clear that for this administration it's not simply about winning seats, it's about advancing conservative principles. It might make sense to change the constitution to prevent partisan entrenchment -- to formalize, as in Germany, a supermajority rule, or as has been suggested in Hungary (on p. 14 of a report by the Open Society Institute available in PDF format, here) to

further define criteria for selection and promotion of judges and make those processes, as well as performance evaluation, more transparent; allow for increased input or scrutiny from external experts of the deliberative process.(quote is on p. 14 of "Judicial Capacity in Hungary," a report by the Open Society Institute, available in PDF format, here)

But with the system we have now, the federal judiciary is a great prize for "high politicians" on all sides.

Ultimately those opposed to Bush's nominations will have to make the case that the Bush administration is quite self-consciously choosing judges who have particular approaches to civil rights, abortion, gay rights, and property, and that these approaches are bad, not that judges should be miraculously free of such approaches.