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Defusing the judicial confirmation process

Defusing the judicial confirmation process

Acrimony over Supreme Court and other judicial nominations helps fuel the polarization poisoning American politics, undermining faith in institutions, shattering families and friendships, and embroiling businesses and markets in controversy. Fortunately, 2020’s elections have produced a fleeting opportunity to detoxify the confirmation process and handed both parties powerful motives to do so. The ideal moment might be before the high-stakes Georgia runoffs determine which party will control the Senate, as both parties may fear the confirmation process should the other party gain control.  

In a written compact, Democratic and Republican senators could vent accumulated grievances, agree to put them behind, admit that both parties have contributed to dysfunction, restore the judicial filibuster at all levels and set agreed-upon parameters and principles for future confirmation hearings. However, the window of opportunity for such an accord may pass swiftly.

Confirmation hearings have turned the U.S. Senate – “the world’s greatest deliberative body” – into a gladiatorial arena, with Republicans and Democrats taking turns ditching longstanding conventions and blaming one another. 

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This is a relatively new phenomenon. In 1857, the Supreme Court issued one of the most polarizing rulings in judicial history — Dred Scott v Sandford. Four years later, half the nation had seceded, and the remaining half was dangerously divided. Yet, Abraham Lincoln’s five Supreme Court nominees breezed through the Senate without controversy. One senator voted against his first nominee; the rest were approved by acclamation. The length of time between nomination and confirmation ranged from a half-hour to seven days. 

Even in our time, the Senate approved Justice Antonin Scalia 98-0 and Justice Ruth Bader GinsburgRuth Bader GinsburgFor Thanksgiving, the Supreme Court upholds religious liberty Cardinal Dolan hails Supreme Court decision on churches, COVID-19 Cuomo blames new conservative majority for high court's COVID-19 decision MORE 96-3. 

Contrast those confirmations to Democrats’ rejection of Robert Bork, Republicans’ refusal to consider Merrick GarlandMerrick Brian GarlandFeinstein departure from top post sets stage for Judiciary fight McConnell pushed Trump to nominate Barrett on the night of Ginsburg's death: report Feinstein to step down as top Democrat on Judiciary Committee MORE, filibusters against Samuel Alito and Neil Gorsuch, and sulfurous hearings over Clarence ThomasClarence ThomasFor Thanksgiving, the Supreme Court upholds religious liberty Defusing the judicial confirmation process Will the Supreme Court take ObamaCare off life-support? MORE and Brett KavanaughBrett Michael KavanaughFor Thanksgiving, the Supreme Court upholds religious liberty COVID-19: Justice Alito overstepped judicial boundaries Defusing the judicial confirmation process MORE. This year, all Republicans but one voted to confirm Amy Coney BarrettAmy Coney BarrettFor Thanksgiving, the Supreme Court upholds religious liberty Cardinal Dolan hails Supreme Court decision on churches, COVID-19 Cuomo blames new conservative majority for high court's COVID-19 decision MORE, and all Democrats and independents voted against her. A question now hangs in the air as to whether a president of one party can get a Supreme Court justice confirmed by a Senate dominated by the other party.

Thus, the possibility of a Democratic president and a Republican Senate offers a chance and motive to de-escalate. Democrats will want President-elect Biden’s nominees confirmed rapidly and calmly. Republicans would like some guarantee that future Republican presidents will enjoy the same civility — and no more threats of court-packing.

Given the relative stalemate delivered by the 2020 elections, a written, bipartisan compact could restore tried-and-true norms, with presidents of both parties reasonably certain that competent nominees will win easy approval. Possible provisions might include: 

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— Democrats would offer grievances about Republican actions (e.g., Republicans stalling President Obama’s lower-court nominations, refusing to consider Merrick Garland, eliminating the filibuster for Supreme Court nominees, confirming Justice Barrett days before the 2020 election).

— Republicans would offer grievances about Democratic actions (e.g., last-minute accusations against Judge Bork and Justices Thomas and Kavanaugh, endlessly filibustering Miguel Estrada and other Bush appointees, eliminating the filibuster for lower-court nominees, filibustering Justices Alito and Gorsuch). 

— Both parties would admit some degree of culpability in these past actions. But they would agree to disagree over the validity of specific complaints and over which party’s actions have been more egregious. 

— The parties would agree to restore the filibuster for Supreme Court and lower-court nominations, while pledging that the filibuster shouldn’t be used routinely, for ideological reasons or unproven allegations of impropriety.

— The parties would define a “reasonable” timespan between nomination and confirmation vote. 

— Both parties would endorse the principle that presidents have the right to nominate justices and judges whose philosophies accord with their own. They would also agree that senators ought to vote for competent nominees, irrespective of how they imagine the nominees would vote on specific cases.

— The parties would settle the Biden Rule/Garland/Barrett controversy by clearly specifying a cutoff date for nominees appointed during presidential election years. Both would agree not to stall nominations made before that date. Nominations made after that date would not be considered until the next presidential term. 

— In strong terms, both parties would explicitly reject court-packing, which the compact would clearly define as adding new seats to the judiciary — not merely filling or not filling vacancies in existing seats. 

This compact would benefit Democrats by assuring smooth confirmation processes throughout President-elect Biden’s term of office. Rejuvenating the filibuster would reinforce the Democrats’ role in Senate affairs, should Republicans control the incoming Senate next year or after the 2022 elections. It would benefit Republicans by diminishing threats (e.g. court-packing), should Democrats regain the Senate majority and by providing ground rules for whenever Republicans retake the White House. 

In 2003, the Hatfields and McCoys signed a truce ending their celebrated feud, and one reads from time to time about the families sharing a reunion. Perhaps the Senate could profit by their example.

Robert Graboyes is a senior research fellow with the Mercatus Center at George Mason University who has taught health economics at five universities.