Confirmation Bias - a book review

Carl Hulse, the Chief Washington Correspondent for the The New York Times, has written a book about the Supreme Court nomination process, Confirmation Bias: Inside Washington's War Over The Supreme Court, from Scalia's Death to Justice Kavanaugh, but it is much more than that. As the jacket blurb states:

"Hulse revisits the judicial wars of the past twenty years to show how those conflicts have led to our current polarization and resulted in not one but two Trump-nominated

conservative justices who could be serving for decades."

Hulse's takeaways are not promising for the future of Article III judicial nominees. Hulse concludes the book with the final paragraph:

"Mitch McConnell made a snap decision one night in 2016. The consequences will reverberate for decades."

The decision to which Hulse refers is of course the immediate reaction when McConnell learned that conservative Supreme Court of the United States Associate Justice Antonin Scalia had passed away. The decision was that President Barack Obama, with almost one year remaining in his second term, would not have the ability to nominate someone to the Supreme Court who would get a hearing like every other Supreme Court nominee not withdrawn by any president in history had been afforded.

That decision by Senate Majority Leader McConnell, then reinforced by then-Senate Judiciary Committee Chair Chuck Grassley, "would help decide a presidential election" and

"accelerate the transformation of the Supreme Court itself into a politicized body."

Hulse reminds us that this resistance and mistreatment of Article III nominees did not just begin in the current administration or under the leadership of McConnell but has long been growing. In many respects, where the Senate process is for judicial nominees today can be traced to the early 2000's. Hulse identifies an editorial page from the Wall Street Journal published in November 2003 that disclosed memos amongst Democratic senators and their staffs about the way to address some of President George W. Bush's nominees. The memos disclosed included reports of liberal advocacy groups expressing concerns with some of Bush's nominees, including Miguel Estrada, who Bush 41 had nominated to the D.C. Circuit Court of Appeals.

Those who watched the Brett Kavanaugh confirmation hearings and remember seeing questions about Democrats information being taken by some Republicans can connect the editorial to that line of questioning.

Former Senator Tom Daschle, who was a leader in the Senate back in the early 2000s, has "come to lament the politicization of the courts."

Estrada became the first circuit court of appeals nominee to be filibustered by the Senate. Estrada withdrew his nomination eventually and his wife miscarried during the process. She later died from an accidental overdose of alcohol and sleeping pills.

In 2009, Republicans returned the favor. Obama's first nominee, David Hamilton, who was nominated to the 7th Circuit Court of Appeals and had the apparent support of Hamilton's home state Senator, Richard Lugar, was filibustered.

In 2010, the Republicans picked up six seats in the Senate, and the rejection of many Obama nominees began anew. Goodwin Liu was nominated to a seat on the 9th Circuit Court of Appeals in May 2011 but withdrew his name when he knew he would not get a vote in the Senate.

Republicans had been critical of the Democrats use of the filibuster for Bush 41, but now used it regularly. Senate Majority Leader Harry Reid filed cloture "on more than twenty district court nominees, a previously unheard-of phenomenon...."

Republicans, upping the tools that the Democrats had used on Estrada (and before that, Robert Bork), asserted that the D.C. Circuit was not busy enough to warrant any filling of vacancies by Obama.

Grassley then taunted the Democrats to use the nuclear option and eliminate the filibuster for judicial nominees, but warned the Democrats, "Be careful what you wish for."

McConnell also spoke presciently of what the result might be, warning that "you [the Democrats] will regret this, and you may regret it a lot sooner than you think."

Frustrated by the tactics of the Republicans, in early 2013, the Senate, led by Reid, did invoke the nuclear option, which would apply in all nominations except for Supreme Court justices.

(As McConnell clearly foretold, that exception would be set aside in a few years.)

Hulse, after providing the more than fifteen-year history of the escalating frustration of the president's prerogative and function of nominating judicial candidates, returns to 2016 and the vacancy created by the death of Scalia. 

Obama of course nominated Merrick Garland, a  D.C. Circuit Court judge widely respected by both Republicans and Democrats and who was selected in part because of his moderate jurisprudence.  Obama demanded that the Senate give Garland a hearing and vote on him:

“If you don’t, then it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair. It will mean everything is subject to the most partisan of politics- everything. It will provoke an endless cycle of more tit-for-tat, and make it increasingly impossible for any president, Democrat or Republican, to carry out their constitutional function. The reputation of the Supreme Court will inevitably suffer. Faith in our justice system will inevitably suffer. Our democracy will ultimately suffer, as well.”

The Republicans did not budge, and Garland became the first Supreme Court nominee whose name was not withdrawn not to be heard by the Senate Judiciary Committee or given an up or down vote. McConnell and the Republicans stood firm, and at the Republican National Convention in Cleveland, McConnell gloated that “I made another pledge that the Obama would not fill [Scalia’s] seat.” That seat would in fact be filled by President Donald J. Trump.

Hulse next takes up the Senate practice that had long been honored of the blue slip, requiring senators from a nominee’s home state(s) to return a blue slip in order for the nominee to get a hearing by the Senate. While there had been exceptions to the practice over the years, “enforcing blue slip approval was much more the rule than the exception.” 

Senate Judiciary Committee Chair Grassley rejected the process out of hand, and in February 2019, the Senate for the first time confirmed a judge who had not received a blue slip from either home state Senator (the state was Washington).

Senator Chuck Schumer expressed the erosion of the rules in the Senate, making it indistinguishable from the House of Representative:

“So this is a major step back, and another way that the majority is slowly, inexorably, gnawing away at the way this body works and making it more and more like the House….”

Readers of current statements by Senators Lindsey Graham and others from the GOP about the brief by several Democrats to the Supreme Court in the New York gun license case referring to the Court as needing healing should read Hulse and be reminded of the statements made during the last few years by Republicans. For example, Trump tweeted, “We need more Republicans in 2018 and must ALWAYS hold the Supreme Court,” just before the midterms. 

With Trump having successfully nominated Neil Gorsuch to the Scalia vacancy after McConnell invoked the nuclear option for Supreme Court justices, Trump had a second chance to nominate another Supreme Court justice in 2018, after Justice Anthony Kennedy announced his retirement. Brett Kavanaugh was the nominee, and Hulse spends some time on the divide and fight that ensued. However, after the Democrats filibustered Gorsuch led to the nuclear option for Supreme Court nominees,  the Republicans had the benefit of no filibuster for Kavanaugh. The rest of that story is of course history.

Hulse asserts toward the end of his book that the decisions made by McConnell immediately after hearing of Scalia’s death helped deliver the White House to Trump:

“Benefitting from the Scalia seat held open by McConnell, Trump won the election and the ability to shape the courts, but at a steep cost to all three branches of the government in terms of public respect and confidence.”

As a redux of the angst of Graham when the Democrats filed the amicus brief with the Supreme Court, he might be reminded of his comments in Greenville, South Carolina, in February 2019, telling the crowd:

“I promise you this as chairman of the Judiciary Committee, we are going to start over and we are going to get as many conservative judges in the system as I possibly can.”

Hulse lays blame at the feet of both parties for where we are at today, writing toward the end of the book:

“As the result of the 2013 rule change eliminating the sixty-vote threshold for most nominees and the 2017 extension of that standard to the Supreme Court, a Republican president abetted by a Republican Senate will have had years to fill the courts without need of a single Democratic vote, negating the need for any kind of compromise, consensus, or negotiation.”

Graham has told his Democratic colleagues that he regrets where the process is at, stating: “Judges are going to be more ideological because you don’t have to reach across the aisle to get anybody’s input, and it is going to have an effect over time on the judiciary that I very much regret.”

Hulse paints a dark picture of what might lie ahead, and there does not seem to be any avoidance of the tit-for-tat that Obama warned about during his presidency. Hulse’s Confirmation Bias is a must read for those who are interested in learning how we got to the point we are at in Article III judicial nomination proceedings. The picture is not a good one to ponder, with more to come.