Bad Arguments on Judicial Confirmations
Everyone knows why Senators support and oppose judges. So why do politicians insist on BS'ing us?
President Biden, as we know, has announced that he intends to select a Black woman to replace retiring Justice Stephen Breyer. And you could predict the conservative reaction to it- someone was going to stick his foot in his mouth. That someone was Prof. Ilya Shapiro, incoming at Georgetown, who said that an Indian American judge was actually the most qualified candidate but that the President was insisting on selecting a “less qualified” Black woman. Of course, in addition to being racist, this was ridiculous- Prof. Shapiro doesn’t even know who Biden’s pick will be, so how could he possibly know her qualifications?
Shapiro’s gaffe was predictable because this is the way conservatives talk about race amongst themselves. They often talk as if affirmative action and diversity work among an absolute, measurable spectrum of merit, where the minorities who benefit from such programs are ipso facto “less qualified” than white males. Smart conservatives, however, know better than to say this in mixed company, because it always comes off as “the white males are qualified and the minorities and women aren’t”. Prof. Shapiro, trying to be Mr. Hot Take on Twitter (a common malady of a lot of academics who should know better), apparently never got the memo.
But while Prof. Shapiro’s gaffe was obvious and predictable, to me, the most depressing thing about the discourse surrounding judges is that nobody says what they actually believe. Here’s what people actually believe- the Supreme Court decides a bunch of highly politically salient cases, cases where politicians and elite political hobbyists care passionately about the results. And everyone wants Supreme Court Justices appointed who will vote their way in such cases.
This is why liberals select liberal nominees and conservatives select conservative nominees. Importantly, it is also why the party bases have started demanding that most Senators oppose the other party’s nominees (a fairly new phenomenon: there used to be at least some more acceptance that the other side would get its judges when it was in power).
And yet, politicians do everything possible to avoid talking about this. This is why we get inane discussions of “qualifications” in the first place. Every Justice currently on the Court is super-smart. So are all the potential nominees to fill Breyer’s seat. They are all accomplished lawyers. And even people outside of the legal system can sometimes make good judges if they are smart: the job has a significant political component as well. (Having said that, the response of some lefties to the “qualifications” discourse implying there are no qualifications and anyone can serve on the Court is also wrong. The Court hears a lot of complicated cases, especially the less politically salient ones in areas such as tax, patent, and bankruptcy law. A person with no familiarity at all with the legal system or who had a second-rate legal education is going to have a difficult time in those cases.)
So the party putting forth the nominee always says how highly qualified he/she is, and the opposing party tries to tear down those qualifications. The party putting forth the nominee swears to the person’s impeccable character, and the opposing party looks for and exploits scandals. The party putting forth the nominee emphasizes things like diversity (and both parties do this- look at O’Connor, Thomas, and Barrett for GOP examples), and the other party accuses the nominating party of tokenism.
But all through this charade, nobody ever says “I favor this nominee because I think he or she will reach the result I want in the big cases” or “I oppose this nominee because I think he or she will reach bad results”. Indeed, the one prominent example of a major figure doing this- Ted Kennedy’s speech about Robert Bork’s jurisprudence- gets routinely condemned.
When the nominee is a woman or a minority, it gets worse than this. Here’s Rep. Eric Swalwell:
The Republican Party most certainly is not opposed to a Black woman on the Supreme Court. They had even groomed one- former California Supreme Court Justice and active D.C. Circuit Judge Janice Rogers Brown. She’s very libertarian and pretty conservative, and a lot of Republicans wanted her on the Supreme Court. It didn’t happen due to the timing of nominations and the political climate, but it wasn’t because any Republicans were going to vote against her.
What Swalwell is doing is taking Biden’s pledge (born of coalition politics) to appoint a Black woman and turning it into a tool to falsely accuse Republican Senators of racism. Obviously if Biden announced he planned to pick a white male to the Supreme Court, Republican opposition would have been the same, because Republicans oppose liberal Supreme Court nominees. It happens that Biden is going to choose a Black woman, a fact that has nothing whatsoever to do with the Republicans’ opposition. But it allows Swalwell to say this anyway- especially since everyone in Washington pretends that their votes on Supreme Court nominees are not ideological (thus depriving Republicans of the most obvious defense against Swalwell’s accusation).
These discourse conventions serve nobody’s interests. I suppose people are a bit afraid of explicitly politicizing the Court, but that gets things wrong in my opinion: nobody’s ever denied that the nomination process is politicized. There’s an issue of how politically the justices act once they get on the Court, and it’s a serious one. But judicial nominations have been partisan since the start of the Republic (the famous case establishing judicial review, Marbury v. Madison, arose out of partisan judicial nominations) and this hasn’t in any way interfered with judicial independence. Once they get on the Court, Justices at least sometimes call them as they see them, which is why we have seen, throughout American history, some heterodox court decisions. Life tenure, not a nonpartisan confirmation process, is what ensures some level of judicial independence.
Instead, what the failure to admit what is really at stake in confirmation actually does is just make the discourse really toxic. It was seen as more politically correct to go after Brett Kavanaugh over issues of personal conduct, so in addition to the quite credible allegations by Christine Blasey Ford, we were also treated to such side shows as Kavanaugh’s receipt of baseball tickets. Which is more important- that he may have attended some baseball games for free or that he’s going to vote with the conservatives in important cases? But a discourse that says it is OK to to discuss scandal but not a judge’s ideology pushes us towards that sort of idiocy.
And I really can’t overstate how toxic stuff like Shapiro’s and Swalwell’s comments are. America is something of a racial tinderbox, and the last thing we need is either conservatives telling the world that Black women aren’t qualified or liberals making knowingly false accusations of racism to try and score a political point. In a world where people were free to say “I don’t like this nominee because I don’t think she will vote the way I want her to” would be a world with less of that garbage.