A Three-Fifths Rule for Judges?

Orin Kerr asked yesterday for arguments for and against the proposition that, leaving aside the current partisan controversy, requiring a three-fifths Senate majority for confirmation of judges is a good idea.

My instinctive, conservative response is that it is not. For over 200 years, judicial nominations have been confirmed by a simple majority of Senators voting. Until recently, this tradition was so firmly entrenched that it didn’t have to be a formal rule. Despite the theoretical possibility of a filibuster, numerous highly controversial appointments with less than three-fifths backing have not been blocked. The most famous recent instance is Clarence Thomas. Some of us also remember J. Harvie Wilkinson, confirmed with 58 votes in 1984 for the Fourth Circuit after several of his opponents voted in favor of cloture, and Daniel Manion, confirmed for a Seventh Circuit seat in 1986 by a 48-46 margin. Five Carter and Clinton appointees to Courts of Appeals also received fewer than 60 Senate votes.

However much one may wish to quibble about the aberrant case of Abe Fortas, who withdrew from contention after a test vote of cloture showed that he lacked the support of a majority of Senators, there is no reasonable doubt that a three-fifths requirement for judges has never been part of our unwritten Constitution. Presidents have not made nominations with an eye toward the need for a supermajority, and opponents of particular nominees have not aimed to win over two-fifths-plus-one rather than a majority of their colleagues.

The results of this de facto rule have hardly been disastrous. For all the recent criticism of some judges’ political aggressiveness (we had a new high in Nebraska today), the American federal judiciary is, by any reasonable standard, among the best in the world. Citizens take their cases to court without fear that justice will be for sale and with confidence that their evidence will be impartially heard. Half of all litigants are of necessity disappointed. Many of the losers complain, not always wrongly, that the judges misread the law; they don’t complain that they couldn’t afford to match their adversaries’ bribes. That is not the rule throughout the world.

One reason, in fact, why judges have been able to usurp authority from the elected branches of government is the high esteem in which they are held. The average citizen accords a prima facie presumption of correctness to court decisions, even to ones that he would prefer had gone the other way. He has less confidence in the high-mindedness and integrity of the men whom he elects to office.

It is hard to believe that judges would enjoy such repute if the procedure for choosing them were in need of fundamental reform. If the rules are now going to be altered, there ought to be some clear gain from doing so. Otherwise, in the words of the 2nd Viscount Falkland (1609-1643) (not Burke or Disraeli, as you might mislearn by googling the quote), “If it is not necessary to change, it is necessary not to change.”

What are the benefits hoped for from a three-fifths rule? The only one that I have heard is that it would force Presidents to nominate only moderate jurists, acceptable to both ends of the political spectrum. That might be a worthy consideration if the business of the judiciary were primarily political, but it isn’t. Take a hundred appellate cases (or 500 from the district courts) at random, and a batch that has as many as three with political content will be an outlier (either that, or your definition of “political” is too broad for your own good).

The political cases are the most publicized and may be individually the most important, but, in the aggregate, they are of minuscule consequence compared to a judge’s real job: construing statutes, interpreting contracts, ascertaining facts, determining which legal principles to apply to them, and doing all else that is needed to adjudicate quotidian personal, commercial and criminal litigation. The qualities needed for that work have little to do with ideology. I wouldn’t want Lawrence Tribe to decide the meaning of the Ninth Amendment; I’d be delighted to have him preside over an ERISA case.

A supermajority requirement is unlikely to weed out nominees who lack the intellect, temperament or character to sit on the bench, because Senators are not in a particularly good position to evaluate those qualities. In any event, there is no sign that we need a tighter filter for them. The predictable outcome of upping the bar for confirmation is that more nominees will draw opposition, and those who are attacked will almost always be those who have expressed strong opinions on issues of public policy. Given that first-rate lawyers tend to be opinionated, the pool of potential judges will shrink, perhaps dramatically, certainly in numbers and very likely in quality. The seven judges to whom Senate Democrats currently threaten to apply their three-fifths standard are, after all, a pretty distinguished collection of legal talent, not a bunch of ward heelers who passed the Bar on the third try.

One possible outcome, then, is a bias toward mediocrity, which may be fine if one’s highest priority is to keep judges from handing down anti-democratic edicts but is less good if it is important to see that complex statutes are rationally applied to controverted facts. There is a sense in which Harry Reid is doing what Tom DeLay is accused of, namely, trying to transform judges into second-rate time-servers.

The way to avoid mediocrity, to bring candidates of the Right and the Left back into the eligible pool, is horse trading: Presidents may find it necessary to make deals under which they will be given untrammeled discretion to pick some proportion of judges, on the condition that the Senate opposition gets to name the rest. The appointment power would then effectively be divided. Maybe that system would have virtues, but a preference for political moderates would not be one of them. Effectively, confirmation would then require less than a majority of the Senate, which would open the way for “extremists” (that is, men whose views are sufficiently bizarre that a majority of the Senate would reject them, which is not necessarily an indicium of genuine extremism) and, for that matter, well-connected hacks.

All in all, I can see no clear, or even plausible, reason to change the status quo. It will be unfortunate if the strong measure of the “nuclear option” is necessary to prevent Senator Reid and his cronies from effecting a revolution, but a whiff of grapeshot now is better than a weakened judiciary later.

Comments

[Bruce Allardice]

If the Senate can make a rule that it takes 60 senators to obtain a vote on a judge, can the same Senate make a rule that it takes 66 votes to pass any law proposed by a Democrat? Just wondering ...