If we have not yet reached the nadir of non-partisanship in judicial confirmations, Politico reports that we’re right around the corner from it. In the first six months of this session of Congress, Senate Democrats have voted against far more of Donald Trump’s appointments than in his first two years. And it’s tough to see whether those Democrats are embarrassed by this — or bragging about it.
Actually, that’s not really true. They’re bragging about it pretty openly:
Sens. Kirsten Gillibrand of New York, Bernie Sanders of Vermont and Elizabeth Warren of Massachusetts have rejected every Trump judge since this Congress began. Klobuchar, who drew fire from progressives for previously supporting 64 percent of the Trump nominees, supported only 3 percent, according to data provided exclusively by the liberal judicial group Demand Justice.
Sen. Kamala Harris of California supported 6 percent of judges she voted on this Congress, compared with 51 percent previously; Sen. Cory Booker of New Jersey voted for 49 percent of Trump’s nominees last Congress and 11 percent this year.
“You could ask me about each [nominee] and each one has something wrong with their record,” Gillibrand said. “They’re either unqualified or they have views that are so disproportionately outside the norm that I couldn’t support them.”
Of the 2020 candidates, Sen. Michael Bennet of Colorado voted for Trump judges the most, at 31 percent this Congress, but still down from 67 percent the previous Congress.
It’s not just the 2020 presidential hopefuls, either. According to the data from the progressive pressure group Demand Justice, almost everyone in the Senate Democratic caucus has ramped up their opposition to Trump appointments. The knee-jerk partisanship has gotten so bad that John Cornyn told Politico, “They’ve lost their minds.” Contrary to Gillibrand’s defense that each nominee has had unique defects that prompted nay votes, Cornyn states the obvious:
“It’s just reflexive so I don’t think it’s any reflection on the nominees in particular. They’re just opposed to anything and everything the president is for.”
That was true from the moment Trump took office, though, and judicial appointments were already charged with partisanship at that point. So what’s changed in this session? For one thing, the presidential cycle has already started on the Democratic side. At the same time, the 2020 election season puts Democrats at an advantage in the Senate elections, with Republicans defending far more seats in a reversal of 2018’s dynamic. Democrats see the judicial wars as a key to winning back the White House and control in the upper chamber.
And … that’s pretty understandable, since Trump and Mitch McConnell have been bragging openly on their ability to shove judicial appointments through the Senate for the past two and a half years. Both have made it clear that they see their ability to reset the entire federal judiciary as a major theme in 2020, just as Democrats do. They have succeeded thanks in large part to rules changes McConnell has forced in order to speed up confirmations. Those rules fights go back for two decades and grew especially bitter after the Harry Reid-Chuck Schumer “nuclear option” in 2013, but it’s impossible to ignore that McConnell has raised the stakes. It’s not just Democrats bragging about partisan power plays in relation to judicial appointments, and that’s why “reflexive” is the order of the day on both sides of the aisle.
At any rate, the pretense of nonpartisanship on judicial appointments has evaporated in the heat of maximalist politics. There’s little sense that a return to normalcy is in the offing, not in the near future and not in the long term either. If and when the roles get reversed, don’t expect Republicans not to respond to the incentives in the paradigm both parties have created. Congress has surrendered so much of its authority to the bureaucracy and the courts that both have become the real prize in elections. Until the judiciary and Congress resolve to fix that constitutional distortion by ending the “living Constitution” approach that turned the courts into a de facto constitutional convention, this electoral spoils system will endure. The big question will be whether true representative governance will endure along with it, or whether the star chamber will eventually take its place.