Could the Supreme Court Go Extinct?

By Mike Dorf

There is a longstanding debate about to what extent Senators may vote against an otherwise professionally qualified Supreme Court (or other judicial) nominee based on disagreement with that nominee's judicial philosophy or ideology.  At some level, of course, the answer is that Senators can vote however they want on such matters, constrained only by politics.  But in practice there was, until relatively recently, a debate that pitted the following two positions:

1) The only legitimate grounds for opposing a nominee are professional qualifications.  Under this view, the President gets to pick Justices who share his views about the law and even Senators who hold quite different views must then vote to confirm, absent such disqualifications as incompetence or lack of judicial temperament.

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2) Senators are entitled to vote against an otherwise professionally qualified nominee where that nominee holds ideologically "extreme" views.  Under this view, a President gets some deference so that a moderately liberal (or moderately conservative) Senator will vote to confirm a moderately conservative (or moderately liberal) nominee.  However, there is a point beyond which a Senator need not go.

It was fun to watch Senators switch between positions 1) and 2) depending on who the President was but at least we knew the range of acceptable views.  As a practical matter, other things being equal, a President whose party controlled the Senate would have an easier time getting a nominee to his liking through.  Other things weren't always equal, of course, and all sorts of political factors complicated appointment politics, but the broad pattern made sense.

Lately, however, we have seen the emergence of another position, namely:

3) A Senator is entitled to vote against any nominee who doesn't share his judicial philosophy.  Moreover, disagreement with a nominee's judicial philosophy is a sufficient basis for voting against cloture as well as the merits.

Position 3 isn't yet fully acceptable and it doesn't usually get explicitly defended.  That's why Senators who deploy Position 3 will often try to characterize a nominee they wish to oppose as not merely holding ideologically distinct views but as ideologically extreme.  I.e., Senators who take Position 3 feel the need to defend their actions by reference to Position 2 (just as a generation ago, Senators who took Position 2 sometimes characterized their objection to a nominee's extreme views as a matter of professional qualifications, because a generation ago Position 2 wasn't yet fully accepted, so it had to be shoehorned into Position 1).

If, over time, Position 3 becomes the dominant view, we will have a recipe for gridlock whenever the President's party has fewer than 60 seats in the Senate.  The party opposing the President will simply refuse to confirm anyone who holds views of which they disapprove.  Meanwhile, the President will have no reason to cave.  In the extreme, this would lead to an equilibrium of no confirmations at all, and eventually the Supreme Court would go extinct.

That's an absurd result, of course.  In practice, the President and the opposing party in the Senate will battle it out politically.  And one might even expect that the legitimation of Position 3 would lead to a stable compromise in which Presidents of both parties typically name middle-of-the-roaders, except when they have large majorities in the Senate.  But this seems unlikely, not least because increased polarization (at least among the party activists who care intensely about judicial nominations) will make a true middle-of-the-roader look like an extremist to both sides.  Note how much of the left is intensely disappointed in Pres. Obama while much of the right thinks he's a radical socialist.  Or note how liberals think Justice Kennedy is deeply conservative with a few occasional surprises while conservatives regard him as a traitor to the cause.  I'm not saying either side is "objectively" wrong, but it's pretty clear that both Obama and Kennedy are fairly close to the center of public opinion.

What lessons should we draw?  First, if Dems want a liberal on the Supreme Court, it's now or never.  Actually, maybe it was a year ago or never, as the Maine Senators have lately shown themselves not especially willing to play ball, whereas a year ago it was possible to get to 60 without them.  If Obama gets another vacancy next year, he'll likely have even fewer Democratic Senators to work with.

Second, it would be very unhealthy in the long run for Position 3 to become legitimate.

And third, all of these factors will combine to make for more basically dishonest confirmation hearings.  Senators who hold Position 3 will pretend to hold Position 2 and therefore will try to portray any nominee from the other party as an extremist.  The nominee in turn will have to do her best to come across as bland and inoffensive, backing off from any prior statements or opinions (in the case of a judge) that could be construed as saying anything other than "I just follow the law."

Here's hoping I've gotten it wrong somehow.