On Judicial Nominations, Progressives Must Start Setting the Record Straight Now

Conservatives have spent much of the last eight years viciously attacking progressive Senators for mounting mostly unsuccessful filibusters against a handful of the most problematic Bush nominees to the federal bench.That was then, this is now.

In a turnabout startling event in the topsy-turvy world of judicial nomination politics, prominent conservatives have already started to threaten filibusters against President Obama’s judicial nominees before Obama has nominated a single judge. In Boston recently, former Whitewater prosecutor and Bush I Solicitor General Ken Starr quoted Senate Republican sources for the proposition that a filibuster (denial of an up-or-down vote) is appropriate treatment for Obama nominees because Obama joined in attempted Senate filibusters of Bush nominees. Specifically, Starr noted that Senate Republicans have said that Obama’s “voting record and long simmering resentments over Democrats’ treatment of President Bush’s nominees will leave Mr. Obama hard-pressed to call for bipartisan help confirming judges or even an up-or-down vote.”

Never mind the fact that the Supreme Court nominee Obama attempted to help filibuster (Samuel Alito) had a disturbing record and was confirmed anyway, and that Senate Republicans during the Bush Administration criticized the use of filibusters and threatened to change the rules of the Senate to prevent them. Never mind, also, that the constitutional role of the Senate is to provide “advice and consent” — and not “categorically reject” – the president’s judicial nominees, something that President Obama certainly understands as both a former constitutional law professor and a former U.S. Senator who refused to join several filibuster attempts and voted to confirm the vast majority of Bush’s nominees.

Nope, in an argument you will hear more of in the coming months, Republican senators can vote in lock step to filibuster Obama’s nominees simply to keep score: he filibustered, so we will filibuster. Political payback. Period.

Next, conservatives continue to distort what little Obama has actually said about his judicial philosophy, proclaiming – with flimsy evidence – that Obama wants to appoint liberal activist judges who could not care less about the Constitution and will instead legislate social policy from the bench. Of course, Obama’s inaugural address, which talks about sharing the Framers’ commitment to the rule of law and protection of fundamental constitutional rights, is directly to the contrary. Nonetheless, conservatives have been assisted in their venture of distortion by the media, who have recently been putting a right-leaning, divisive slant on Obama’s position on judicial nominations, all under the rosy auspices of calling for bipartisanship. The latest instance of this came last week from the Christian Science Monitor, when its editorial board wrote:
Obama’s record as a senator does not indicate he has a listening heart on judicial selections. He was not one of the bipartisan “Gang of 14” senators who, in 2005, brokered a compromise to avoid filibusters for votes on President Bush’s court nominees. He has also made clear that he wants courts to use the Constitution for social policy. Judges, he said, must have “the heart, the empathy … to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.”

While such empathy is necessary for presidents or legislators, it runs counter to the judicial oath. Judges must “administer justice without respect to persons, and do equal right to the poor and to the rich.” And a Rasmussen poll last month found that nearly two-thirds of Americans say court rulings should be based on what is written in the Constitution. Only 35 percent believe Obama agrees with them on that.

As we reported three weeks ago, the (heavily criticized, even by conservative-leaning Volokh readers) Rasmussen Poll referenced here is itself another example of partisan framing of the judicial nominations debate. More important, however, the Monitor editorial blatantly invents Obama’s position on judges by saying he has “made clear that he wants to use the Constitution for social policy,” which prompted numerous letters to the editor, including this one by CAC president Doug Kendall. As Doug points out:
…Mr. Obama has said no such thing. What he has said is that he wants judges who have empathy, which means simply that judges should be able to understand the plight of individuals very different from themselves. That often seems required by the judicial role of providing “equal justice under law” not inconsistent with the judicial oath, as the Monitor asserts.

Earlier this month, the LA Times also published an editorial calling for President Obama to “move beyond partisan battles over nominations to federal courts,” in which it suggested Obama begin by re-nominating Bush-nominee Peter Keisler to the D.C. Circuit. Though we here at Text & History are all for bipartisanship, the re-nomination of a co-founder of the Federalist Society to a court that is the most frequent feeder court for justices to the Supreme Court strikes us as an unlikely and unwise olive branch for Obama to offer.

Meanwhile, even Chief Justice John Roberts has weighed in on the subject of Obama’s anticipated judicial nominations, stating in a recent speech at the University of Arizona Law School that former federal appeals court judges make the best Supreme Court justices, suggesting people with other backgrounds bring too much politics into the mix. Following Roberts’ advice would take some of the most frequently discussed potential Obama nominees – including Elena Kagan and Deval Patrick – off the table and leave Obama with an older (most Clinton appeals court nominees are now in or past their late 50s), less complete pool of potential nominees.

All of this clarifies that President Obama, and progressives in general, must not only prepare themselves for the forthcoming debate over judicial nominations, which is certain to begin shortly after Obama’s first 100-day sprint has passed, but start pushing back now, before conservatives have completely reframed the debate.

In bracing himself for a clean fight, Obama would do well to remember two points. The first, and most obvious, point is to be wise about who he nominates. As the LA Times editorial correctly notes, and as we have explained (pdf) in the past, Obama should be sure to put forth individuals who are highly-qualified, and whose professional qualifications immediately blunt criticism from conservatives. Importantly, however, Obama should reject the Chief Justice’s suggestion that in filing a Supreme Court vacancy he limit himself to federal appeals court judges, and instead look both inside and outside the judicial academy for future nominees. The latter category of nominees can forcefully be defended: after all, many of the greatest Supreme Court Justices, including Chief Justices John Marshall and Earl Warren and Justices John Marshall Harlan and Hugo Black, had no judicial experience before joining the Court.

Second, President Obama and his supporters must be wise about their message to Americans when discussing the federal judiciary. Obama can continue to assert that he will seek “empathy” in a judge, but he must be careful to root this call in the Constitution’s demand for equal justice under law, as described in the CAC letter to the editor quoted above. As he did in his inaugural address, Obama should highlight the importance of adherence to the Constitution’s commitment to the rule of law. Recent, national polling conducted by CAC has revealed that small changes in the way progressives describe our vision about the Supreme Court and the role of the judiciary can have a powerful impact on public opinion.

With these two guidelines governing the choice of nominees and the messaging surrounding nominations, progressives can set the terms and win the upcoming debate over the future of the Supreme Court and the federal judiciary. The time to start setting the record straight is now.