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Joshua Spivak is an attorney and media consultant. The nomination of federal judges has become one of the most controversial of all presidential acts. No spending bill, tax cut proposal or even act of war seems to raise congressional tempers so quickly to a boil — and provide red meat to partisan ideologues and fund-raisers alike — as when the president sends a high-profile name down to Congress for an appointment to the bench. The issue is so intense that, in an attempt to make it easier for the Republican majority to approve nominees, Senate Majority Leader Bill Frist, R-Tenn., has been contemplating significant alterations to one of the most notable, if highly controversial, Senate traditions, the filibuster. The fighting over judicial nominees is popularly traced to the Senate’s rejection of U.S. Supreme Court candidate Robert Bork in 1987, as well as to the divisive social issues such as abortion that have marked political campaigns since then. There is truth to this explanation, but it does not do justice to the long and contentious history surrounding the Senate’s nomination procedure, nor some of the other changes that have shaped the political process in recent years. MYTH OF PRIOR HARMONY While most of the current debates are focused on the lower courts, the Supreme Court is where much of the historical argument resides. The biggest myth in the discussion of judicial battles is that the judiciary was previously placed on a pedestal. The historical record for Supreme Court nominees belies this argument. In fact, since 1789, 33 of the 148 nominees for the highest court have either been rejected by a vote of the Senate, had the voting on their nomination repeatedly postponed or filibustered into nonexistence or eventually bowed out. In the 19th century, more than a third of the nominees went down to defeat. What explains the widely held rose-colored view of a bipartisan, smooth-running judicial nominations process? Primarily, it is due to the more recent past. Between 1894 and 1968, only one Supreme Court nominee was rejected. But there was a good reason for the president’s success in nominating candidates: This 74-year epoch was noteworthy for one-party domination of both the presidency and Congress. As divided government once again became the norm, so did battles over presidential nominees. Of course, there is more than divided government to blame for the wrangling or its increasing frequency. The battle has migrated down from the seldom-opened nine Supreme Court slots — all of which have been occupied for the last 10 years — to the lower courts. The growth in the size of the lower courts — the federal judiciary, on both the district court and circuit court level, has more than tripled in size since World War II — has provided for more opportunities to fight. The Senate has also changed the way it deals with judicial nominees. Members of the Senate have long realized that backing each other up in battles against the presidency or the House of Representatives was the most effective way to maintain their power. The most famous way they do this is by a process known as senatorial courtesy. The Senate as a whole would refuse to vote on presidential candidates who did not gain the approval of the home-state senators. The home-state senators would use a procedure known as a “blue slip” to let the Senate Judiciary Committee know their position. Through this procedure, senators controlled appointments to the district-level courts and had a large say in the circuit court nominees. This bipartisan back-scratching prevented the lower courts appointment process from becoming simply an ideological war zone. Instead, the court system was more likely to operate as a patronage dumping ground for individual senators. While senatorial courtesy still exists, it doesn’t have the same power. As every old-time senator seems to suggest, the body has become a less congenial place. But for judicial nominees, there are added reasons to give less weight to the courtesy system. And it is in this area that the current explanation is useful. Because of the increasingly central role that litigation — frequently federal court level litigation — plays in America’s business and society, the court system has become too large and important for partisan ideology to be kept out. As the judicial caseload has exploded, and with the Supreme Court ruling on a smaller percentage of cases each year, the lower courts have become the judicial rule-makers in all but a tiny fraction of legal actions. Lower court judges are now frequently in the news over decisions on conflicts that touch on the most controversial political and business questions. Over the next few years, America can expect to see some bruising confirmation battles take place in the Senate. But the shock and horror that will be expressed as both sides complain about the degradation of the judicial nominating process should not be taken too seriously. The lessening of senatorial courtesy is just the result of the Senate dealing with the growing importance of the judiciary.

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