Jurisprudence

The Supreme Court After the Nuclear Option

Will the quality of the justices go down now that the filibuster is gone?

U.S. Supreme Court
A man walks up the steps of the U.S. Supreme Court on Jan. 31 in Washington.

Mark Wilson/Getty Images

If the filibuster can no longer be used to defeat a judicial nominee, the immediate effect is to lodge the confirmation power in whatever party has a majority of senators. That party therefore need make no concessions to the other and indeed can, if it wishes, pay absolutely no attention to arguments against confirmation made by the minority power, however cogent those arguments.

Were the quality of the nominee (intelligence, experience, fair-mindedness, etc.) the basis on which individuals are nominated for federal judicial offices, the elimination of the filibuster would have diminished—maybe very little—significance. In that case, both members of the Senate majority and members of the Senate minority could be expected to base their confirmation votes on quality, and would often agree on the quality of the nominees. But nowadays persons are not nominated for a federal judgeship (whether a district court judgeship, a court of appeals judgeship, or membership on the Supreme Court) on the basis of quality. Quality may figure, but the dominant influence is politics, primarily the politics of the president.

Advertisement
Advertisement
Advertisement

In part because each federal judicial officer has law clerks, usually four in the case both of federal appellate judges and Supreme Court justices, a judge or justice’s judicial opinions are likely to be of acceptable quality even if the judge or justice is not a skilled writer or sharp thinker. If you ask yourself whether the nine justices are nine of the best 100 or, for that matter, 1,000 American lawyers, the answer probably is no, as there are a total of more than 1 million American lawyers. The top 1 percent of the 1 million would be 10,000, a number that doubtless includes a number of lawyers who are superior to the current justices.

The current method of appointing justices (as well as lower court federal judges) does not select for the best, yet the filibuster could be regarded as a means of promoting enhanced quality of appointments. To prevent a filibuster, or at least prevent the filibustering senators from succeeding in blocking a nominee by the president of the opposite party, the senators of the party of the nominating president would be under pressure to ask the president to withdraw the nominee and nominate someone who would be acceptable to enough of the filibustering party to enable the new nominee to be confirmed. The resulting compromise between the opposing parties could be expected to enhance the quality of successful nominees, for the quality of a nominee would be a factor that both parties would be willing to take into account.

One can imagine a senator of one party saying to himself: I would have preferred our nominee to win the Senate for confirmation, but since he’s blocked by the filibuster by the other party, I’m willing to compromise on a nominee who, being of outstanding quality, can be expected to be a fair-minded judge or justice rather than an ideologue. Half a win is better than a loss.

Advertisement