Confirmation logjam or partisan entrenchment?

[Jack Balkin]

        Here's what I find objectionable about John Eastman's recent proposal in
the Wall Street Journal to give the President the power to appoint lower
federal judges if the Senate won't vote on his appointments:  It undermines
the system of checks and balances.  It gives a narrow ideological faction
the power to control the Constitution's meaning.  Finally, it concentrates
even more power in a President who has shown himself to be particularly
tempted to act unilaterally and without accountability to anyone else.
        For the last two decades at least, the right wing of the Republican Party
has been engaged in an energetic crusade to "take back the
Constitution."  Why the Court needed to be taken back given that the
Democrats haven't controlled it since 1970, I'll never know, but the idea
basically is that remnants of Warren Court liberalism still stink in the
crevices of much of contemporary constitutional doctrine. As the Republican
Party moved to the right during the 1970's and 1980's, the federal courts
became an important ideological target for the party's right-wing.  They
hoped to entrench their ideological allies in the judiciary and change the
Constitution through Article III interpretation, a process that Sandy
Levinson and I have called "partisan entrenchment."  (See our 87 U. Va.
piece; also see Howard Gillman's excellent recent piece in APSR describing
the history of partisan entrenchment efforts by the G.O.P. after the Civil
War.).
        Especially after the Bork hearings (and in part because of them), the
Republicans have been more willing to play hardball than the Dems when it
comes to judicial appointments.  (My favorite quote from Senator Hatch
during his tenure as head of the Senate Judiciary committee: "No liberals.")
        The Republicans were furious that Bill Clinton won the White House twice,
especially the second time.  They believed that the Presidency was rightly
theirs.  They successfully used their control of the Supreme Court to help
secure the Presidency in the 2000 Election.  By January 2001, the now
controlled all three branches of government, or what I like to call the
"constitutional trifecta."  The takeover of the federal judiciary was in
their grasp.
        The problem was that the Republicans forgot one thing.  Although they
technically controlled all three branches, they actually didn't have the
support of an sizeable majority of the American public to go with
it.  Indeed, they didn't win the popular vote in the Presidential election,
and their control of the two Houses of Congress was razor thin.  This
caused a tension between rulers and ruled that would eventually have to be
resolved.  By pushing (or threatening to push) a hard right agenda--
particularly on social issues and judicial appointments-- they made it much
easier for a Republican senator from a northeastern state to defect.  The
northeastern wing of the Republican Party is sort of a dinosaur-- a
holdover from the time before the more conservative Republicans of the
South and West effectively took over the party apparatus.  Not
surprisingly, Jeffords defected, putting an end to the constitutional
trifecta, and restoring divided government.  My point is that this was not
a surprise.  When there is no branch of government representing over half
of the nation's voters, something's got to give.
        The Democrats were no dummies. They knew what Hatch had done when Clinton
was in power, and they knew what the Republican game plan was: partisan
entrenchment in the federal judiciary. So they have done the logical
thing.  They have stonewalled on judicial appointments.  (In, fact, they
probably should stonewall even more, given the 2000 election, but that's
another story.).  My point is that they have a perfect right to do
so.  They know that the judicial appointments– even at the lower court
level-- will entrench hard right Republican ideology in the interpretation
of our Constitution for twenty to thirty years.  They have their own views
about what the Constitution means, and they think that the Constitution is
worth fighting for.  So they are fighting back.  And good for them!
        The Republicans can win back the trifecta if they win the Senate.  There
will still be a disjunct between rulers and ruled, (that is, unless another
northeastern Republican like Chafee deserts the party and no Southern
Democrat changes sides in response).  But that too, can be changed in the
next election.
        The problem with John's proposal is that it hands over to a party with a
strong ideological agenda that a majority of Americans do not share (I mean
that a majority are not hard-right wingers), and that has not demonstrated
significant majority approval, the right to remake the Constitution of the
United States in its own image.  It hands over to the President– who has, I
am afraid, shown a marked tendency toward unilateralism and
authoritarianism– the right to roll over the only institution in our
Government that comes even close to representing the popular majority of
Americans who voted *against him* in the 2000 Election.  Giving Bush
unilateral power to appoint lower federal court judges is perhaps not as
dangerous as giving him unilateral power to make war and cause death and
destruction (don't get me started on that one), but it's pretty damn scary
to a lot of people in this country.
        The point is, that you shouldn't change constitutional structures that are
designed to keep a faction (and that's what I regard the right wing of the
Republican party as– a faction) from running roughshod over the rest of the
country and entrenching its political predilections in the U.S.
Constitution for a generation to come.  If a party can repeatedly gain
popular support over time, it has the right to stock its ideological allies
in the courts.  That's how the Constitution changes over time.  But John's
proposal short circuits the arduous task of demonstrating that your views
of the Constitution really are more than just the views of a narrow
ideological faction.

* * * * *

        There is a broader constitutional issue at stake here, and I guess this is
as good a place as any to mention it. I'm increasingly worried that the
hard right wing of the Republican party is unwilling to play by the rules–
that it knows that it is right and will do what it takes to gain power and
push its views forward through manipulation of constitutional structures
and constitutional arguments.  I saw it in the Clinton impeachment.  I saw
it in the fight over the 2000 election, and I'm seeing it today in the
creeping authoritarianism of the Bush administration.  I don't think it's
wise to concentrate any more power in this President.  Frankly, the man
just gives me the creeps.  I don't trust him one bit, and despite his often
bland rhetoric of inclusion and consultation, I think that he likes
bullying and overpowering people and cutting his opponents off at the
knees.  He is a very dangerous man, and we should not be giving him any
more power than he has already seized.

Jack Balkin