Congress’s Politicization of the Federal Courts Is Scary for Democracy

Federal judges make decisions every day that affect the lives of Americans. It matters that they do their jobs fairly.
by Kim Wehle
March 21, 2019
Featured Image
(Photo by Charles Ommanney/Getty Images)

Senate Majority Leader Mitch McConnell’s cynical quest to solidify a conservative grip on the federal courts took a new turn recently, as the GOP announced plans to change Senate rules to enable a faster and more partisan process for confirming federal judges.

With 128 district court vacancies and a handful of circuit court nominations left to fill, the maneuver could allow Republicans to stack the federal bench in an unprecedented way during Donald J. Trump’s current term, leaving few slots open for the next president.

This is bad for democracy, folks, because it essentially means one-party rule for judicial appointments.

To understand what’s happening, let’s clarify five basics about how things go today:

1) Under existing Senate procedure, “cloture process” allows a majority leader to shut down debate on any matter with a three-fifths vote of the entire Senate. Cloture allows the majority to “push presidential nominations past a recalcitrant minority” that’s engaged in a filibuster. The cloture option was first used in 1919, but rarely invoked again until the early 1970s, jumping to nine times in 1973. With the re-election of President Obama, the cloture-vote tally climbed to 187 in 2013-2014, as McConnell led sequential filibusters of Obama’s nominees to federal office.

2) In 2013, Democrats responded with the first draw of the “nuclear option” gun, which allows for passage of a cloture motion by a simple majority of 51 senators. In 2017, Senate Republicans extended the nuclear option to Supreme Court nominee Neil Gorsuch—a shut-out of Senate Democrats that reached a fever pitch during the controversial confirmation of Justice Brett Kavanaugh to the Supreme Court. (Recall that McConnell refused to even hold hearings on Obama nominee Merrick Garland, a move that generated more than a little outrage on the left.)

3) Even under the 51-vote nuclear option, the cloture process has allowed the minority party to engage in debate for 30 hours before a final vote is held on a cloture motion. Yet the Senate Rules Committee recently approved a change that would shrink that number to two hours, allowing for fast-tracking of judicial nominees with nary a peep of meaningful protest from the minority party.

4) To make matters worse, Republicans have signaled a willingness to implement the two-hour debate change without the consent of a 60-vote supermajority in the Senate. If Democrats raise a fuss over the change, McConnell’s team is poised to use the nuclear option to ram through the new norm without bipartisan support.

But there’s more.

5) In addition to altering Senate rules on the length of pre-cloture debate, Republicans have tinkered with what’s known as the “blue-slip courtesy,” under which senators from a judicial nominee’s home state are given the prerogative to stop a potential judgeship early on in the process. After the end of the 60-vote filibuster, the blue slip precedent is one of the few ways left for the minority party to influence judicial appointments.

The blue-slip courtesy goes like this: Once a president submits a nominee to the Senate, the Senate Judiciary Committee chair sends a blue-colored form to the two senators from the nominee’s state. The senators can each return the paper with a positive or negative response to the nominee, or they can decline to respond at all. Traditionally, a thumbs-down or non-response meant that the nominee did not move forward—regardless of whether the dissenter was a Democrat or a Republican.

Last year, the Republican Senate confirmed a number of court of appeals judges without the blue slip endorsements of a home-state senator. For the first time in nearly 100 years, the current chair, Lindsey Graham, pushed through a nominee to the Ninth Circuit without the blue slip consent of either senator from his home state of Washington. Senator Sheldon Whitehouse complained, “We are unilaterally disarming the Senate Judiciary Committee in a way that will have collateral damage well beyond the immediate goal of packing the courts with these nominees in a great rush.”

So much for bipartisanship in the selection of federal judges.

Why does all of this matter?

It matters because the framers of the Constitution envisioned a federal judiciary that would stay above the political fray. Unlike many state court judges, federal judges are not elected, and they serve for life. The theory is that, if federal judges don’t have to worry about being re-elected, they will call balls and strikes based on the facts and the law. When deciding cases involving the legal rights of individual parties, in other words, they won’t make the nasty political compromises that are required of elected officials in order to keep their jobs.

With all of his party’s behind-the-scenes procedural maneuvering, McConnell might well succeed in stuffing the federal bench with like-minded judges. But it will come at a price.

As a matter of constitutional structure, it’s important that representatives of voters from both ends of the political spectrum get to weigh in on judicial appointments. Ultimately, it’s the only way the federal judiciary will be viewed as legitimate by the people it serves. Politicization of the federal bench thus damages the system of American democracy.

Federal judges wield lots of power to affect the lives of regular Americans. They make decisions about health care, civil rights, immigration, abortion, the death penalty, voting rights, and the scope of presidential power, to name but a few. And because the Supreme Court hears only a handful of cases each term, that reality extends deep into the federal bench. Many of the most important rulings in a dispute—such as those involving the admission of evidence at a trial—are very hard to overturn on appeal. Most intermediate decisions by trial-level judges cannot even get to a higher court for review until the proceedings in the lower court are over, after much of the damage has been done.

This is not to say that federal judges are to be feared. There are good ones and bad ones. But as with any job, it matters who is hired to be a federal judge, and it matters that there are legitimate systems of accountability in place to ensure that they’ll do their jobs fairly and well.

A good judge is one guided by norms of integrity, the rule of law, even-handedness, and decency—not politics. Too bad Republicans in Congress aren’t abiding by those norms with respect to who gets on the federal bench.

Kim Wehle

Kim Wehle is a contributor to the Bulwark, a professor at the University of Baltimore School of Law, a former assistant U.S. attorney, a former associate independent counsel in the Whitewater investigation, a CBS News legal analyst, and a contributor to the BBC. Her book, How to Read the Constitution and—Why, will be published in June. Follow her on Twitter @kim_wehle.