Post-Filibuster: Confirming a Supreme Court Nominee in the New Era

Political scientist David Yalof discusses the process of selecting a Supreme Court Justice now that established norms have changed.

American legal system challenge as a flag with stripes tangled with a justice scale. (wildpixel/iStock/Getty Images Plus)

Political scientist David Yalof discusses the process of selecting a Supreme Court Justice now that established norms have changed. (Getty Images)

David Yalof is a professor of political science, head of that department, and author of the book, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees (University of Chicago Press). With the nomination of Circuit Court of Appeals Judge Brett Kavanaugh to fill the seat of retiring Justice Anthony M. Kennedy, UConn Today spoke with Yalof about the process of selecting a new justice and the upcoming United States Senate confirmation hearings.

Q. You have written previously about the various factors that shape the nomination of someone to the Supreme Court, but now all of the norms that we expect have changed.

A. The biggest norm was the need for some bipartisan consensus, that you would need at least eight to 10 from the other side, or there would be a filibuster or it would be a nail-biter. There were exceptions, such as Clarence Thomas, who slipped through by a vote of 52 to 48, but there were a handful of Democrats who made that possible. With the filibuster now gone as of March 2017, a nominee can be confirmed on a strict party line, and that’s probably what’s going to happen this fall. You can appoint a very conservative nominee such as Justice [Neil] Gorsuch or Judge Kavanaugh, and there’s little the minority can do to stop it. I mention in the book the importance of American Bar Association ratings and qualifications; those factors are almost irrelevant now.

Q. President Trump has decided to use another standard which is basically the conservative Federalist Society list of judges that he’s been working with.

A. The Federalist Society has always had a tremendous interest in getting extremely conservative judges on the bench, including on the lower courts. The truth is Republican presidents in the modern era have listened to advice from interest groups like the Federalist Society, the Cato Institute, and the American Enterprise Institute. What’s so unusual now is that President Trump is openly admitting that the Federalist society will be helping him to vet his nominees. They’re providing the list, the White House is consulting with them, and he doesn’t make any apologies for it. That willingness to be so open about it is very unusual and highly unprecedented.

Q. One of the issues that comes up is previous writings and rulings by the nominee. This seems to be where the focus is now.

A. Absolutely. If you didn’t have the end of the filibuster rule and one of the most polarized Senates in history, the fact that Judge Kavanaugh worked in the White House at critical times in history – working with Ken Starr on the investigation of Bill Clinton, working for the Bush campaign during Bush v. Gore – would create mounds of potentially embarrassing memos. Somewhere in those reams of papers, I’m sure he said something embarrassing or unfortunate. This all could be a tremendous headache. A Kavanaugh nomination is not the “stealth” nomination that David Souter’s nomination was. The conventional wisdom used to be that you wanted a nominee without a paper trail. Judge Kavanaugh is probably going to be confirmed despite the paper trail because you have a polarized Senate and the Republican numbers are there.

Q. You’ve always described this as a political process because we’re talking about presidential politics, as happened when President Obama made his nomination of Judge Merrick Garland and was told by Mitch McConnell, the Senate leader, we’re just not going to move on it and we’re going let the next president make the nomination. In your book you note this type of situation has happened several times in history.

A. What Mitch McConnell argued was that if a president is in his final year, he’s truly a lame duck and we don’t allow Supreme Court nominations through. The truth is we have had presidents nominating justices in their final years – Lyndon Johnson was in his final year when he nominated Abe Fortas to be chief justice in 1968. In fact, there is a long history of presidents nominating justices in presidential election years. The merits of those nominees were debated and they got floor votes. What’s so unusual about 2017 was the declaration that the American people should decide who fills the vacancy. The Democrat response was a pretty good one: The American people did decide twice, by electing Barack Obama. They didn’t elect him to a three-year term in 2012. Does the last year not count? But when you have the votes, you don’t have to listen to that kind of logic.

Q. We’re in a climate of partisan politics and hard positions on both sides and there is precedent for this manipulation that you’ve written about.

A. There is definitely precedent for the Senate opposition to assess a president’s political strength, note when that strength is not there, and react accordingly. If you go back to the 19th century, John Tyler was one of the weakest presidents in history, having never been elected [he took office after the death of William Henry Harrison]; Andrew Johnson was weak as well; indeed, he was impeached – you can’t get much weaker than that. Their Supreme Court nominees, whether or not they were qualified, were attacked. It didn’t really matter if they were qualified, the president who was nominating them did not have enough political power to fight back. That’s really what we saw with Barack Obama two years ago. What we’re seeing now is that when you do have the political strength on your side in the form of a Senate that agrees with you, anything is possible. We will see a fight, but it’s hard to imagine the Republicans not getting their man.

Q. Is there any sense that we can go back to where it was different in the way we approach this process, or has the line been crossed too far?

A. The short answer is that we cannot return to that earlier world in a slow, incremental way. The last time the Congress was this polarized was the 1850s, and in the 1860s we had a civil war. That, of course, blew up the party system as we knew it. The birth of the Republican party in the 1850s was a response to just how polarized things had gotten. God forbid we have another civil war, but something like that – maybe a “cold civil war” – is going to be required to shake up the political system to the point where the two political parties are not this polarized. It is an incredibly tribal situation. Friends, neighbors – it’s hard for them to talk across party lines anymore, and certainly the Senate and the House is representative of that sentiment.

Q. You wrote your book just before access to presidential papers became limited with the Presidential Records Act. You point out that in certain presidencies, like John F. Kennedy’s, there was more personal discussion rather than written documentation of issues, which appears to be how President Trump is functioning. Looking ahead for scholars interested in this subject matter, how difficult will it be to analyze this process and other issues going forward?

A. It’s going to be hard to determine who said what to Donald Trump. I don’t think any of us believe when Donald Trump is done being president, he’s going to have such a great memory for everything he said. There’s probably going to be a lot of disagreement about what he said. Here’s what I will say: The gold mine for historians 10 or 20 years from now when they look back on the Trump selection process is going to at the Federalist Society offices. Those papers aren’t covered by the Presidential Records Act. I think what enterprising scholars are going to have to do is throw away the old playbook and find new ways to get this information. The old rules just don’t apply anymore. They don’t apply to decision-making, and I don’t think they apply to scholarship either.

Q. What questions are not being asked about the nomination of Supreme Court justices?

A. These things work in cycles. Right now the Republicans have very narrow control of the Senate and of the presidency. Ten years from now we could be looking at the complete opposite: a Democratic president and Senate. It is unimaginable that the Democrats are going to go back and start playing by the old rules when they are suffering so much under these new ones. What we can expect is the actual appointment of extreme liberals and extreme conservatives who will be fighting it out on the court. That’s actually not an unexciting, unappetizing possibility for those of us who like to see forceful writing and positions being challenged. We thought we were going to be in an environment where only boring, stealth nominees that have said nothing interesting could be confirmed. It looks to me like we’re going to have the opposite; we’re going to have extreme liberals and extreme conservatives. We are also going to have to question the basic fairness of a system that puts politics in the hands of presidents in an uneven way. Scholars are already talking about imposing terms of 14 years on Justices, and enforcing a rotation of these vacancies so that every president knows when and where these vacancies will occur.

Q. One of the other things that is always discussed is the effect that the court has on American life. While it certainly has had it in the past, it seems to be the real end point in discussion, where a judge in their 40s or 50s can have a 20- or 30-year effect, and life as we know it is not going to be the same.

A. That’s always been the case. Bush versus Gore was an important moment in the history of the Court because the Supreme Court effectively decided on a 5-4 vote that George W. Bush would be president – the five who voted for that result were known as the conservatives on the court and the other four were known as the liberals or moderates on the court. I think that exposed the Supreme Court as not the apolitical branch many were hoping for. Most of America subscribes to a “Cult of the Court,” the notion that the Court is above partisan politics. Things bent back very quickly; but today, it’s hard to think of Justice Gorsuch and possibly Justice Kavanaugh – just like Clarence Thomas and Samuel Alito – as being anything but the Republican, conservative justices that President Trump was hoping they would be. Stephen Breyer and Ruth Bader Ginsburg are considered the court’s most liberal justices. How can anybody argue that?

Q. Given what might be coming out in the Mueller investigation, President Trump could be served with a subpoena and the challenge of that going to the Supreme Court, where two votes sitting in judgment were put there by the sitting president.

A. The last time we had this kind of situation was the litigation pitting Paula Jones versus Bill Clinton. The Supreme Court had to decide whether a civil litigant suing a president would have to wait until after the presidency was over. The Supreme Court, in a bipartisan way, voted 9 to 0 that the litigant did not have to wait. The President may be the leader of the free world, but he can get in a witness stand and answer questions and be subject to civil discovery. It might be, just as U.S. versus Nixon was an 8-0 decision, that the Court can find consensus at these critical moments. It might not be the consensus that the liberals want, but the court might find a consensus. If it does, it would be consistent with what Chief Justice John Roberts has said – that the court’s prestige and status is paramount.

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