The U.S. Constitution grants the sole responsibility of nominating federal judges to the president. The process concludes with the “advice and consent” of the U.S. Senate. More than 600 judges currently sit on U.S. District Courts, nearly 200 sit at the appellate level and nine make up the U.S. Supreme Court. Both Republican and Democratic presidents have generally enjoyed wide latitude in their choices of nominations for the federal judiciary. At one time, the advice and consent function of the Senate was largely perfunctory, concerning itself largely with ensuring the professional fitness and moral character of the nominees. Over the past few decades, however, the appointment process has become overly politicized. One would be remiss in not acknowledging that over the years, there have been some real political controversies regarding certain judicial appointments, namely that of imposing political litmus tests for various questions, including civil rights and abortion rights.
But the politicization of the nominating process escalated to new levels of intensity when, in 2016, the Republican-controlled Senate refused to grant President Obama’s Supreme Court nominee, Merrick Garland, an up-or-down vote. Senate leadership and rank-and-file Republicans argued that because Obama’s nomination of Garland occurred in the midst of a hotly contested presidential election, the American people would be denied an appropriate voice in the selection of a nominee by allowing the vote.
Democrats continue to blame Republicans for politicizing the Garland nominating process by raising the issue of the upcoming election and refusing to vote on the president’s constitutional prerogative, thus leaving the Court without a deciding vote in the months leading up to and in the immediate aftermath of the presidential race. Furthermore, they argue, the appointment of a conservative justice to replace the vacancy left by the sudden death of Antoni Scalia—a beloved conservative—became a rallying cry for support of the Trump candidacy.
Now the roles have reversed. Senate Democrats have promised to use all parliamentary means at their disposal to obstruct the vote on President Trump’s newest nominee, Judge Brett Kavanaugh, until after the midterm elections this October. They argue that their action gives the American people a “voice” in selecting the new nominee in that a Democratic takeover of the Senate would force the president to nominate a less conservative justice. They point out that retiring Justice Anthony Kennedy, a conservative justice nominated by former President Reagan, served as an occasional swing vote for the left. Democrats have not hesitated to highlight seeming hypocrisy on the part of Republicans, who have cried foul at their intended maneuver.
The Democrats’ argument fails in two respects. First, we are not in the midst of a presidential election, and whatever happens during the midterms, the nominee most likely will be a conservative. Waiting until after the midterms will not change that. Secondly, the likelihood of Democrats regaining control of the Senate during the midterms is low. Democrats would need to hold on to all of the Senate seats they currently hold, including those in states Trump won during the presidential election, as well as pick up two additional seats. That is a narrow path to a Democratic majority at best.
Despite both facts, as soon as Justice Kennedy announced his decision to retire from the Court, Democrats began a major fundraising effort centered around the idea that Republicans want to roll back the clock on social progress on key litmus-test issues: voting rights and abortion. They have utilized scare tactics to erode the public’s trust in the president’s ability to nominate a justice who will follow the law and uphold the Constitution, which is a standard that has existed for more than 100 years.
The fact is, however, as widely acknowledged by legal analysts on both the left and the right, Trump played it safe and smart with the nomination of a mainstream conservative such as Kavanaugh. National Review columnist John Fund tweeted, “Kavanaugh was a real inhabitant of Bush World, even married George W’s personal secretary from Abilene. For Trump to overcome his background and pick him means Kavanaugh aced the interview with Trump and that Trump was willing to listen to establishment advice.”
The nomination of a solid, mainstream conservative demonstrates growth and maturity on Trump’s part. He not only chose a safe pick but also chose to listen to the advice of conservatives in the Senate and outside groups such as The Heritage Foundation and The Federalist Society to select a judge who maintains Republican support without any detractors, thus making him easy to confirm.
Democrats have already decided to politicize the process as much as they can. Although they might not be able to derail the president’s nominee, they could muddy the waters enough that radical elements within the GOP and the Trump camp could have time to regroup and disrupt the carefully calibrated unity between the president and mainstream conservatives. That could potentially poison the well for upcoming legislative battles and dilute the president’s strength among voters. To avoid a possible impasse, Republicans would do well to negotiate a deal with Democrats that would ensure future Democratic nominees would also face less politicization. This deal could be in the form of changing some of the Senate parliamentary rules to reduce politicization for all nominees, or in return for moving forward on stalled legislation around immigration or health care with Democratic input. These suggestions are options Senate leadership would be wise to consider.