Count Infinity

Gavel photo by jonathunder

Judging by the recent past, we might conclude that it’s impossible to get a supreme court nominee appointed without  fight. We might also conclude that it’s impossible to win the fight if the president’s party doesn’t have a senate majority. Obama’s two most recent appointments have been viciously fought by conservatives (for now I’m ignoring whether there was a good reason). Sotomayor would have failed appointment in a Republican Senate, and Kagan looks like she’ll be the same.

Suppose for a moment that all the Democrats in the Senate die. Perhaps they had poorly prepared puffer-fish. Then suppose that all the seats are filled by Republicans (hang on, stay with me). Obama has an empty seat to fill, but is it possible? Can he select a candidate that will satisfy him and a fully Republican Senate? History may have an answer.

President Clinton had only two nominees, Ginsburg and Breyer. Ginsburg was confirmed with 96% voting in favor of appointment. Breyer wasn’t far behind, with 87% in favor, and only 9% against.

Clinton’s experience here wasn’t remarkable either, it was normal. George H.W. Bush also confirmed two, the first with similar margins, and the second by a more narrow vote. Reagan confirmed four, three with unanimous votes. Ford confirmed one, also unanimous. Nixon confirmed four, and only one wasn’t almost unanimous. Of these presidents, the only ones with any rejected nominations were Nixon and Reagan, who both also had unanimous nominations.

Before Nixon things get even more interesting. Nominees were nearly always confirmed, and then, nearly always by a voice vote. In a voice vote there is no formal count, everybody just says “Yes” or “No”, and the winner is decided based on which side obviously had more people. Appointment by a voice vote means a) nobody expected substantial opposition, and b) there wasn’t significant opposition.

In other words, from Clinton on back, supreme court nominations were generally accepted without a big battle, and there was good bi-partisan support for the candidate. So what happened?

It became personal. In 2003 Democrats started filibustering judicial nominees. (Filibustering is a parliamentary tactic that can indefinitely stop a vote in the Senate.) They actually filibustered 10 nominees, none of which were for the supreme court, but the message was loud and clear when they threatened to filibuster a collection of “potential” nominees. Democrats also attempted to filibuster Samuel Alito’s Supreme Court nomination, but failed. Where does Obama come in? Well, that’s where it gets personal. Obama voted in favor of the failed Alito filibuster.

Now the tables are turned, Democrats have a majority, but not enough to necessarily prevent a filibuster, and the Republicans expect to gain seats in the fall. The stakes appear high, feelings are hurt, and everybody seems to be voting the party line. How then would you get a nominee confirmed if the whole Senate disagreed with your political views?

The nomination process is not dissimilar from the problem of getting children to fairly split a treat. The wise parent will use the “one person cuts, and the other chooses” model to solve the problem. The wise child will split the treat very carefully, to avoid getting a smaller piece. Unfortunately, the nomination process looks more like “I cut, and I choose which piece you’ll take, then you can demand a re-cut, or accept”.

The trouble with this process is that it is capable of deadlocking until someone decides that stubbornness no longer favors them. The president can continue to nominate unacceptable candidates, hoping that the Senate will get tired of the game, or the Senate can continue to reject fair candidates, hoping that the president will give up and nominate the candidate that they want.

In this environment, it is possible to get a candidate nominated, but only if the president is prepared to offer a good candidate. Suppose for a moment that a candidate is fair and impartial. They rule according to the law, they’re intelligent, they don’t take bribes, and they make the “right” decision, even if they don’t like it personally or politically. That’s how a judge needs to be, right? In this case, does it actually matter whether the candidate is a Republican or a Democrat?

In this scenario the president could probably get any republican confirmed, due to the highly partisan nature of his Senate. He then only has to find a Republican that will be impartial, which should be a relatively common attribute. Among the impartial Republican possibilities, he could select anyone he wants.

Will this work for Obama? Yes and no. It could, and it should, but he won’t do it. He said the following about who he would appoint:

And 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’ll be selecting my judges.

If this were really true, he would have no problem finding an acceptable candidate that could receive bipartisan support. It is, however, not true. The unspoken message is that he wants someone who will actively promote the same agenda that he is. He wants a judge that is not impartial, but rather, that is partial to his own opinions. Unless he can change his mind and decide that he really wants an impartial judge, he’ll face as much opposition as Bush did on his nominations, and for similar reasons.