Last month, former U.S. Solicitor General Kenneth W. Starr sent out a warning to President Obama: GOP senators won't readily forgive the president for his Senate votes against Supreme Court Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr.
"Long-simmering resentments over Democrats' treatment of President Bush's nominees," he said in a Boston speech, "will leave Mr. Obama hard-pressed to call for bipartisan help confirming judges or even an up-or-down vote."
Then, on Monday, all 41 GOP senators threw down the gauntlet. In a letter to the White House, they "regretfully" made it clear they were itching for a fight over judicial nominations. If the new president wanted to "change the tone in Washington," they suggested, he could renominate Bush picks who weren't confirmed over the last eight years. Right.
The country may have voted for change in the fall, but it looks as if we're facing the same old partisan civil war over the makeup of the federal judiciary. The Democratic majority in the Senate may introduce some new rules in the way this war will unfold -- procedural games involving blue slips and filibusters are now on the other foot -- but the fighting isn't going to end. And that means there's no end in sight to the vacancy crisis on the federal bench, or to the looming crisis in confidence in the process.
Currently, 67 seats (out of 875) are open on the federal bench -- the district courts and the appellate circuit courts that deal with a narrow class of cases, including those involving federal law. Twenty-two of these vacancies have been categorized as "judicial emergencies" based on the size of the caseload in that court or the amount of time the seat has been empty.
There's hardly a need to explain why open judicial seats represent a "crisis": Courts cannot function properly when they are short-handed, and litigants facing long waits and crowded dockets are ultimately denied the justice they seek.
Roberts has argued that we're failing to pay judges competitively and causing them to flee the bench. He's right that federal judges deserve a pay raise, but the decades-long vacancy crisis is less about pay than it is about the ideological struggle to control the courts and what they do.
The stakes are high. The issues that divide us deeply and seem never to get solved -- abortion, guns, gay marriage, the mingling of church and state -- play out in federal courtrooms, turning judges into lightning rods and confirmations into cartoonish battles between "good" and "evil."
Maybe it's not surprising, then, that public figures spew the most extraordinary rot about judges, especially Supreme Court justices. In 2003, Focus on the Family's James Dobson labeled Justice Anthony M. Kennedy "the most dangerous man in America" (this includes you, Zacarias Moussaoui). Dobson was incensed over Kennedy's majority opinion in a case protecting the right to consensual gay sex. And during his confirmation hearing, Alito was smeared as a racist because of his membership in a Princeton group that objected to admitting women and minorities to the university. His wife fled the Senate chamber in tears.
Because courts have so much power to shape our lives, and because judicial confirmation is by its nature guesswork, the Senate confirmation circuses have become America's Rorschach test: We root through a nominee's trash, project onto him or her our own worst fears and anxieties, and speculate about future rulings in future cases. The nominee goes into power-save mode, saying nothing and promising less.
For decades, the culture wars and partisan politics have turned one judicial confirmation after another into a knuckle-bruising playground fight featuring dirt-digging, name-calling and, depending on which team you play for, rage and resentment. As is the case with any playground battle, judicial confirmation often bogs down over who started the fight.
Democrats still harbor resentment over Clinton-era nominations stalled by the Republican-controlled Senate in the 1990s. And as Starr observed in his speech, Republicans are still ticked off over the knock-down drag-outs of 2005, when Bush's nominations stalled amid Democratic filibusters, the threat of a GOP "nuclear option" and an uneasy compromise brokered by the bipartisan "Gang of 14." It all illuminates the extent to which this has more to do with Sharks and Jets than doing justice.
Of course, in the final analysis, it does matter enormously who sits on the federal bench. And partisan bickering over who borked whom, and when, obscures the fact that the appointment power of the president -- and its disposition in the hands of senators -- can fundamentally change the legal landscape.
The New York Times' Charlie Savage reported last fall that Bush had managed despite the confirmation battles to appoint more than one-third of the judges currently serving on the federal appellate bench. These Bush appointees tended to be strikingly young and were "advancing a conservative legal revolution that began three decades ago under President Reagan." Today, 10 of the 13 federal circuits are controlled by Republican appointees, who will shape national jurisprudence for years to come.
As far as Democrats are concerned, an imbalance of this magnitude requires strong medicine in the coming years. Some are calling for Obama to seat a small army of fiery, ideological judges. Nan Aron, president of the Alliance for Justice, told The Times: "We hope for a justice who can replace the lost voice of an Earl Warren or Thurgood Marshall or William Brennan." My colleague Emily Bazelon has said, "The goal should be to find someone who can speak with a roar that matches Scalia's."
It probably won't happen. Obama almost certainly will get to appoint one or more Supreme Court judges -- four are over the age of 70. And the White House has already begun to assess the federal court vacancies across the nation. During the campaign, Obama mentioned "empathy" as a prerequisite for judges. He has shown himself inclined toward moderation, and that probably will extend to his judicial nominations.
Still, the armies in this confirmation war have become so polarized and so mistrustful that what Yale Law School professor Stephen L. Carter has called "the confirmation mess" is seen as having no solution.
There is nothing to be gained by continuing down this road of mutually assured confirmation nastiness. Nominees -- whether confirmed or not -- can be bruised for life by this process.Witness Clarence Thomas. More profoundly, the public sense that judges must live above the sharp elbows and kidney punches of the political process cannot survive many more rounds of the judicial wars.
We should stop the escalating smear tactics and the grandstanding. It hardly matters who started it or who manipulated the rules midstream. Let's stipulate that judges matter a lot in this country, too much to have their nominations and confirmations take place on the sticky bathroom floors of American politics.
Dahlia Lithwick is a senior editor at Slate.