BY APRIL FARRIS
Edward Whelan, the former Deputy Assistant Attorney General of the Department of Justice’s Office of Legal Counsel and current president of the Ethics and Public Policy Center, spoke about the changing nature of the judicial selection and nominating process at an event sponsored by the Harvard Federalist Society March 14.
According to Whelan, the nomination and confirmation process has become more cutthroat and difficult to maneuver due to the actions of Democratic senators. President Bush’s small number of confirmations has reflected this change. In seven years in office, Bush has had just 294 confirmations. By contrast, President Clinton had 370, and Ronald Reagan had around the same amount. In only four years, Jimmy Carter had 262.
Whelan said that the use of filibusters on judicial nominees was to blame for much of the problem because the filibuster had, in years prior, only been used on rare occasions to screen out the most controversial of nominees.
“There is no constitutional problem here,” Whelan said, “but the fact of the matter is that there had never before this administration been a filibuster of a judicial nominee since Abe Fortas, and that one was bipartisan.”
According to Whelan, Democrats have been quick to take advantage of this tool of last resort. During the Clinton administration, there were only four votes on cloture, and all four were supported by Republican leadership. None lost more than 14 votes from Republican senators. By contrast, in 2003 and 2004 alone, Senate Democrats “unleashed the filibuster and defeated 20 clotures.”
“The Supreme Court filibuster against Samuel Alito failed, but it got 25 votes including those of Senator Clinton and Senator Obama,” Whelan said. “The filibuster used to be a critical tool to ‘keep the majority in check,’ but as a majority party, 38 Democrats filibustered Judge Southwick’s nomination to the 5th Circuit.”
Whelan said that Bush’s term in office has also resulted in an unprecedented number of “no” votes on heavily qualified nominees. He contrasted the nomination process of Justice Ginsburg and Justice Breyer with the two most recent Bush placements, Justice Roberts and Justice Alito. Justice Ginsburg was confirmed by a margin of 96-3 while Justice Breyer was confirmed 87-9. By contrast, Chief Justice Roberts was confirmed by a margin of 78-2 while Justice Alito was only confirmed 58-42.
“There was no serious way in which they are less mainstream than the Clinton nominees,” Whelan said. “The Democrats explained this change by claiming that President Bush did not consult with them before hand as Senator Orrin Hatch had done with President Clinton. However, Senator Hatch helped Clinton avoid nominees that he might have required Republicans to oppose. There is no nominee worth his salt that Senator Leahy would have been okay with.”Whelan attributed part of this change in the nature of the judicial nominating process to the “unprecedented importance of outside groups on Democrats” and a willingness to engage in “shameless character attacks.”
“In 2002, Democratic party staffers received letters from the NAACP Legal Defense Fund saying a 6th Circuit installment should be stalled so that it couldn’t affect the affirmative action proceedings at the University of Michigan,” Whelan said. “Leslie Southwick, a nominee for the 5th Circuit, had been rated unanimously well-qualified by the ABA. He had been approved unanimously for district judgeship, but when he was nominated to the 5th Circuit, Senator Leahy launched an attack misconstruing his opinions. Senator Obama was the first senator to pile on Southwick. It finally took Senator Feinstein to stand up to the people who were attacking Southwick.”
Whelan also attributed the drastically different approaches that Republicans and Democrats take to judicial nominations to differences in the party bases.
“Republican senators view judicial nominations as a way to embrace nominees from the other party and to show their constituents how bipartisan they are,” Whelan said. “With Ginsburg and Breyer, there was a rush to roll over and play dead. My boss, Senator Hatch, even hugged her before he reviewed her record. “While Whelan said that Republicans have typically viewed the nomination as an opportunity to boost their reelection chances by showing their constituents how bi-partisan they are, the Democratic approach is different.
“The Democrats have a base that is mobilized by preserving liberal judicial activism.” Whelan said. “The Left has a standard playbook no matter who the Republican nominee is. They try to show he’s racist, sexist, and has all sorts of ethical problems. They try to make everything fit that template, and of course it leads to stretching the truth.”
According to Whelan, this year’s upcoming presidential election will also highlight the differences between the candidates’ views perceived role of the judiciary and the importance of empathy versus detatched interpretation of the law when it comes to making nominations for the Supreme Court.
“Senator Obama has been very explicit in spelling out his view on what’s essential,” Whelan said. “When he was asked why he voted against Justice Roberts, he said that ‘truly difficult cases require empathy to resort to one’s deepest values, one’s core concerns, and the depth of one’s empathy.’ Traditionally, one had wanted judges to be dispassionate, to decide cases based on what the law is. To his credit, Senator Obama has candidly rejected that model.”Whelan said that if Obama or Clinton is elected, Whelan said the “politics of the Supreme Court selection will look a lot like the presidential race.”
“Race and gender will come to the fore. You will have lots of folks saying ‘we need another woman.’ Hispanic groups will say ‘no, it’s our turn first.’ In the end, the primary choice the President will face will be mediating among those competing demands. There will not be a focus on judicial quality. That will be way down on the list, and may not appear at all.”Whelan said that Senator Obama has already decided that empathy with minority groups will be his leading criterion for picking Supreme Court nominees rather than basing selections on judicial merit and ability to interpret the law.
“Obama has said ‘we need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.’ Hillary Clinton’s approach will be the same.”
Whelan holds out greater hope for John McCain.
“McCain knows judges shouldn’t be legislating,” Whelan said. “He understands their proper role. Also, he’s a fighter. If the Democrats filibuster, he will keep fighting and make the case for the nominee and inflict political pressure.”
If Democrats do take the presidency in the upcoming election, Whelan said that Republicans will be faced with three options.
“We can (1) roll over and play dead, (2) fight to the death and filibuster, or (3) make the case why the person is a good or bad nominee, and then vote up or down and move on.” Whelan said. “I would advocate for choice three.”
While Whelan said he would not support a filibuster of a Supreme Court nominee, he said that Republicans will no longer be able to simply let the nominations slide by without incident due to the availability of information on modern candidates.
“In the 1970s, Justice Ginsburg had advocated for coed prisons, the right to prostitution, and abolishing Mothers’ Day and Fathers’ Day to create a Parents’ Day,” Whelan said. “She was not viewed as controversial because no one got the information out there. Republicans won’t be able to roll over and play dead when it comes to judicial nominations anymore. The internet has made it too difficult. If the Republicans do nothing, they will face some political costs now.”