Politicized judicial nominations is the new normal

When liberals cheered because they defeated Robert Bork's nomination to the Supreme Court in 1987, they did not realize they had won the battle but were going to be losing the judicial nomination war to come.  Robert Bork's contentious and ultimately unsuccessful confirmation battle marked the first time that a judicial nominee was attacked for his constitutional philosophy.  In Bork's case it was his originalism or strict constructionism which is a theory that says when in doubt about constitutional meaning, repair to the framer's intent or the original meaning and understanding of the founding generation. 

Bork's other legacy though was set by how his confirmation hearing went down.  Ever since Bork, it became fair game to attack a judicial nominee for political reasons if you disagreed with his/her judicial philosophy.  This tactic became known as "borking".  Prior to Bork, virtually all of a president's nominees to the federal bench were confirmed without incident.  As this interactive graphic from USA Today shows, even the staunch conservative Antonin Scalia was confirmed one year before Bork by a vote of 98-0 in the U.S. Senate. Those days are long gone.

These ideological and partisan confirmation battles have now spilled over to the U.S. Courts of Appeals, particularly the DC Circuit, seen as a stepping stone to the Supreme Court given the disproportionate number of judges from that circuit that have been elevated to the High Court.  This week, Charlie Savage and Raymond Hernandez reported in the NYT that the Republicans had filibustered Caitlan Haligan's nomination to the DC Circuit for a second time even though there are 4 vacancies on that important circuit. 

I should note that until 6 years ago, filibustering a judicial nominee never happened.  But it was also 6 years ago that a "Gang of 14" moderate senators laid out criteria for when a judicial nominee could be filibustered. The standard they agreed to was only in "extraordinary situations."  Haligan's filibuster, over her alleged "extreme" views on guns, signals the death of that Gang of 14 agreement and the return to just plain old partisan and political objection to a nominee's views. 

This development is troubling given that the number of judicial appointments a president makes to the federal bench.  Although public attention is only focused on Supreme Court nominees, in actuality recent presidents have appointed approximately 30 U.S. Courts of Appeals judges and between 127-175 U.S. District Court judges.  Given that the Constitution provides life tenure for all federal judges, not just the 9 at the Supreme Court, judicial appointments are a way a president can make her mark on the political system long after her term ends.  This prospect is called into question now that judicial nominations are subject to the same political quagmire as any other form of politics including the sequester and debt ceiling negotiations.  Borking Bork, was it worth it to open that Pandora's box?