The Great Judicial Stall : The courtsa were meant to be above politics but they have been turned into an arena of ideological combat

The federal judiciary was supposed to be above partisan politics. According to the father of the Constitution, James Madison, it was the “last resort” in republican self-governance, and Alexander Hamilton called it the “least dangerous branch.” But throughout the country’s history, the courts have periodically been drawn into political battles, especially during presidential-election years. That has become increasingly true in the last half of this century and seems to have reached an apotheosis during the Clinton administration, when the judiciary has been the center of a two-term-long battle.

After the turn of the century, progressive liberals, who eventually forged the New Deal coalition, attacked the judiciary for lack of “self-restraint” and for thwarting the democratic process. Their battle came to a head in 1937, when Democratic President Franklin D. Roosevelt proposed expanding the size of the Supreme Court to secure a majority favorable to the New Deal. The court, in retreat, abandoned its conservative laissez-faire economic stance in the proverbial “switch in time that saved nine.”

Subsequently, post-World War II conservatives turned against the judiciary with a vengeance, attacking liberal rulings on school desegregation, in Brown vs. Board of Education (1954); abortion, in Roe vs. Wade (1973); and equal protection for gays and lesbians, in Romer vs. Evans (1996). The federal courts have been pulled ever more deeply into partisan political conflict.

Republicans continue to have the federal judiciary in their cross hairs. In the Senate, the GOP majority is obstructing the confirmation of judicial nominees, in its long-raging war against President Bill Clinton. Though the November 2000 presidential election is 15 months away, candidates for the GOP’s presidential nomination are again targeting judgeships.

To be sure, the Senate typically holds up federal judgeships during the final year of a lame-duck president’s term. Both sides of the political aisle play that election-year game with lifetime appointments to the federal bench. This has been going on since 1801, when the outgoing Federalists expanded the number of judgeships in opposition to the election of Thomas Jefferson.

However, not since the administration of Republican President Dwight D. Eisenhower has the Senate been as obstructionist in refusing to confirm federal judges so early in a presidential-election cycle. A Democratic-controlled Senate began slowing down the appointment of federal judges in 1958, two years before the 1960 presidential election. With the federal bench about evenly split between Democrats and Republicans, the Senate aimed to minimize Eisenhower’s imprint on the judiciary and to bestow the spoils on his successor.

What is unprecedented now is how Republicans in the Senate, under pressure from social conservatives, have blocked the confirmation of judicial nominees almost from the outset of the Clinton presidency. They have waged an increasingly bitter war against his selection of judges ever since they gained control of the Senate following the 1994 midterm elections. They stalled the judicial appointment process in 1995 and, a year later, virtually shut it down in advance of the presidential election.

Then, as now, candidates running for the GOP presidential nomination singled out federal judges in their campaign rhetoric. Remember Patrick J. Buchanan decrying the “judicial dictatorship” governing the land? In 1996, the Senate confirmed just one appellate-court nominee and 17 district-court judges. By comparison, in the last year of Republican President George Bush’s term, the Democratic-controlled Senate confirmed 66 judges, more than during any previous year of his administration.

Embittered and angry over Clinton’s reelection, Senate Republicans increased pressure on Sen. Orrin G. Hatch (R-Utah), who chairs the Senate Judiciary Committee, to hold up hearings on Clinton’s judicial nominees. They also pressed Senate Majority Leader Trent Lott (R-Miss.) to break with tradition by allowing individual senators to place “secret holds” on nominees they opposed, thereby denying them hearings before the Senate Judiciary Committee. Ever since, the GOP-controlled Senate has been stonewalling judicial confirmations, long before the campaign for the presidential election in 2000 kicks into high gear.

During the last two years, the Senate also extracted promises from the White House to name judges handpicked by Republican senators in exchange for possibly moving the confirmation process along. Yet, even the concessions made by Clinton have not broken the logjam or expedited the confirmation process.

Notably, in the first half of 1999, Hatch balked at holding confirmation hearings on any of Clinton’s judicial nominees, some of whom were nominated two to three years ago. Hearings were held only after Clinton agreed to name Ted Stewart to a district-court judgeship in Utah. Although opposed by environmentalists and liberal groups, Stewart had the backing of his powerful old friend Hatch, for whom he once served as an aide. Nor was this the first time Clinton had to strike deals over judgeships with Senate Republicans. Nonetheless, the Senate has not acted on 37 of the 61 nominees put up this year and has voted to confirm only 11 judges.

This long-running war over federal judges is taking its toll. More than 12% of the seats on appellate courts are vacant, as are more than 6% of those on district courts. Furthermore, the Administrative Office of the U.S. Courts deems one-third of the unfilled posts to be “judicial emergencies,” that is, judgeships that have gone unfilled for more than 18 months and now face serious backlogs of cases.

Meanwhile, most of the contenders for the GOP’s presidential nomination who are campaigning bash the courts, while promising “litmus tests” for judges. Candidates Gary L. Bauer, Buchanan and Steve Forbes rally their troops by vowing to name right-to-life, law-and-order social conservatives to the federal bench. Hatch and Texas Gov. George W. Bush, for their part, claim not to have litmus tests. But behind their rhetoric, it is clear they would reward social conservatives with judgeships. As Hatch invariably reminds voters, “the next president of the United States is going to nominate three Supreme Court justices and 50% of the federal judiciary.”

There is nothing new or surprising about Republican presidential contenders eyeing the federal courts. They have done so ever since Richard M. Nixon capitalized on his 1968 promises to appoint “strict constructionists” and to curb “liberal judicial activism.” Yet, his judges, in turn, came to be viewed as too liberal for social conservatives in the GOP’s right wing. President Ronald Reagan, in the 1980s, gave them what they wanted: influence in picking federal judges. But their influence waned during the presidencies of Bush and Clinton. So while they have gained greater power over the Senate’s confirmation of federal judges, they have fought a rear-guard action for much of the last decade. In short, social conservatives miss wielding their past influence in selecting judges and view judgeships as the real prize in the next presidential election.

However, this time around, GOP court-bashing and promises of “litmus tests” ring untrue. Over the last 30 years, Republican presidents have appointed the overwhelming majority of the federal judiciary and all but two of the current Supreme Court justices. It is also ironic, in light of the Republican Senate’s obstructionism in delaying, denying and forcing concessions on judgeships from the Clinton administration.

Make no mistake, the stakes are high. There is a looming crisis in the federal courts that even conservative Chief Justice William H. Rehnquist publicly laments. It’s a crisis brought about by the obstructionism of Senate Republicans, catering to social conservatives, who have transformed the periodic politics of delaying and trading judicial appointments during presidential election years into an established practice on Capitol Hill. That reality poses a more serious, immediate threat to the federal courts and the country than all the heated, often disingenuous, rhetoric of Republican candidates gearing up for the next presidential election--in 2004, not 2000.*