It is undeniable that Senate precedent concerning the appointment of judges has been steadily eroded over the past three decades. Before there was Merrick Garland there was Robert Bork. Before there was Goodwin Liu there was Miguel Estrada. As it stands now, President Trump’s success in confirming nominees can be attributed to the elimination of the judicial filibuster, and the slow death of the blue-slip tradition. But, if the White House and Senate are controlled by different parties, I expect the pace of confirmations to slow to a crawl, if not a complete stop. In the event there is a Supreme Court vacancy the seat may remain empty until the next presidential election. If the future is so bleak, Calabresi’s thinking goes, why not pump as many judges into the courthouses as possible while you’re in power? After all, your opponents will do the same and worse when they take the reins of government back.
In this case, he’s wrong. Generally, an eye for an eye really will make the whole world blind. But with the judiciary, this downward spiral has the exact opposite effect. Today, far too many Americans view the Supreme Court as a political institution. Most people are utterly unaware of the toils in the lower courts. Indeed, more than ninety percent of appellate decisions are rendered unanimously, with judges appointed by both Republicans and Democrats taking the same side of the issue. Calabresi’s proposal would upset that settlement in a deleterious way. To say nothing of the loss of collegiality, there would be an avulsive change in the case law, as old precedents could be discarded by the sheer number of votes.