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Five Kinds of Argument about Judicial Nominations (and Whether They Matter)
There are several types of arguments about nearly all judicial nominations in the modern United States. Given the debate over filling Justice Ruth Bader Ginsburg's seat, it is worth sorting out what those types are:
1. The Substantive Arguments: These are arguments about the actual merits of a specific nominee, or about the general qualifications and appropriate interpretive philosophy of a justice who will sit on a federal court.
Example: "The Senate [should / should not] replace Ruth Bader Ginsburg with a textualist."
[EDITOR'S NOTE: If you don't know what a "textualist" is, click here. "Textualism" comes up a lot in this article.]
2. The Tactical Arguments: These are arguments about whether some particular action actually supports a substantive objective in the long run, or if there's a risk of backfire.
Example: "The Senate should replace Ruth Bader Ginsburg with a textualist, but [should / should not] do it right now, because Democrats [will / will not] retaliate by packing the courts."
3. The Legal Arguments: These are arguments about whether and how a nominee may be confirmed. There have not been a lot of these lately, because the Constitution and Senate procedure are pretty clear, but there were genuine legal questions over the judicial filibuster (and whether and how it could be bypassed) after Senate Democrats developed and deployed it in 2003 against Miguel Estrada.
Example: "Martha McSally [can / can not] vote to confirm a nominee to replace Ruth Bader Ginsburg during the month of December if she loses her election, because the special election [will / will not] seat her opponent on December 1st."
4. The Process Arguments: These are arguments that are not about the law, but institutional norms and precedents. These norms are not legally binding, but many people argue that (A) they exist, and (B) they should be obeyed, except (C) when there is a very good reason to violate them.
Example: "The Senate [should / should not] wait to vote on a nominee until after Inauguration Day, because there [is / is not] an institutional norm against confirming a nominee in the last year of a presidential term, and Senators [should / should not] follow that norm in this case."
5. The Moral Arguments: All other arguments that make moral claims about a nomination go here. They are often (but not always) fairly tangential to the immediate issue.
Example 1: "Mitt Romney [should / should not] vote against any Trump nominee, because President Trump [is / is not] a fascist and Romney should not cooperate with fascism in any way."
Example 2: "There is no actual institutional norm regarding election-year confirmations. However, Lindsey Graham said there was. Therefore, Lindsey Graham [is / is not] bound to refuse any nominee until after Inauguration Day."
Lies, Damned Lies, and Process Arguments
It's worth spelling this out, because a lot of arguments people are having about the nomination right now are at cross-purposes. Process arguments are met with substantive arguments; tactical arguments are countered by moral ones. Answering one argument with a completely different type of argument goes nowhere, because it's arguing about a fundamentally different thing. My Facebook feed is a mess, and I'll bet yours is, too.
In reality, virtually all arguments about judicial nominations are either:
a) honest substantive arguments, or
b) dishonest substantive arguments disguised as other kinds of arguments.
This has been true for literally my entire life.
In 2016, people who said that President Obama should wait to nominate just happened to all be people who also wanted to put textualists on the Court, and who knew that Obama was not going to do that. In 2013, people who said that Senator Reid should detonate the nuclear option to ram through a bunch of D.C. Circuit nominees just happened to all be people who supported the ideologies of those nominees. In 2018, people who believed Brett Kavanaugh just happened to be people who supported his philosophy of judicial interpretation, and vice versa.
And so on and so forth, back through the Alito filibuster, back through the Estrada nomination, back through the Clarence Thomas "high-tech lynching" hearings, all the way back to July 1st, 1987, the day Sen. Ted Kennedy walked out onto the Senate floor and launched the United States Judicial Wars (1987-present) with the lies of his "Robert Bork's America" speech.
The scary thing is that many people don't even realize they're doing this. Lots and lots of people are online right now calling out 2020 Republicans as amoral hypocritical monsters for abandoning the dumb rule they made up out of thin air in 2016, without even noticing that they themselves applauded when 2013 Democrats abandoned the dumb rule they made up out of thin air in 2003 for their own political purposes.
There are a handful of exceptions to this rule. David French and Jonah Goldberg really do want textualists on the Supreme Court, but both have made tactical arguments against filling the current vacancy (They are bad arguments -- but honest ones. I'll explore them in another post.) But these honest exceptions are vanishingly rare.
Everyone else consistently reaches conclusions on process and tactics and the law and even on morality that all just happen to coincide with their pre-existing substantive preferences for the shape of the Supreme Court. That's pretty impressive, when you think about how everyone has had to completely switch sides on issues like "the judicial filibuster" and "nominations in an election year" over the years to reach the "right" conclusions! Yes, yes, Republicans on Facebook, quote McConnell all you like, he's a smart cookie... but I know you weren't talking about a "divided government exception" to the "Biden Rule" back in 2016! You discovered that exception the moment it became useful to you!
So you should mostly just ignore all non-substantive arguments as presumptively disingenuous. You can inquire with the person you're talking to to find out whether they are actually being disingenuous. If not, you can then have a serious conversation with them about the importance of political norms and when is the right time to break them -- but you'll rarely find that you get that far.
Q: So why do people engage in process arguments and tactical arguments and moral arguments anyway, instead of just directly engaging on the substantive issues they all care about?
(I) Substantive arguments are much harder to have. People are very deeply set in their views on judicial philosophy, and having an argument with them about it means debating the hottest culture-war issues we've got, from Engel v. Vitale to Roe v. Wade.
(II) Many centrist voters are upset that the culture war exists, and want it to stop existing. Bringing up substantive arguments spooks these centrists, so both parties try to avoid doing it.
Q: But James! Aren't you just saying process arguments are dishonest because you want the Senate to violate the institutional norm from 2016 and appoint a textualist to fill Justice Ginsburg's seat? Aren't you doing exactly what you're accusing everyone else of doing?
Good! I'm glad you're learning to be appropriately suspicious! That's an excellent question!
In my case, however, I have receipts. I've been saying this since 2004, during the Miguel Estrada hearings, and I've been saying it online for nearly a decade. Here's me saying in 2016 that the "Biden Rule" argument was stupid and that Republicans should admit they are blockading Obama nominees for substantive reasons. Here's me saying the same thing again in 2016. Here's me way back in 2013 praising the Democrats for having the wit to recognize that norms are stupid and for proceeding to blow up the norms that were in their way -- then handing me a series of serious judicial defeats. Here's me showing that judicial nominations battles have always been about substantive issues and the power to pursue them, even in the 19th century, and that the reasons that applied then still apply now. (Note that I was already suggesting the possibility of civil war, a theme to which I recently returned, more than four years ago!
So you can trust me on this one. I believe process arguments are disingenuous, I've believed that for a very long time, and I apply it to both parties.
Q: But James! Have you ever properly excoriated Republicans on this blog for their dishonesty in 2016 the way you tore into the hypocrisy of the Democrats back in 2013?
You know what? I don't think I have. I've certainly thought it, but I'm not sure where I've actually said it online. That's an oversight, and an embarrassing one. So let me say it now:
If Republicans had taken my advice in 2016 and admitted they were blocking Garland because they didn't agree with his vision of the Constitution, instead of making up all that nonsense about "election-year vacancies," then a whole lot of them would be in a vastly less stupid and embarrassing position today than they actually are. They were blocking Garland for obviously ideological reasons, but many Republicans (like Lindsey Graham) tried to come up with some non-ideological excuse for it. What they landed on was some version of "We should wait until the presidential election gives the American People a voice in how we ought to break this deadlock."
Unfortunately for them, they mostly didn't think through their lies as carefully as Mitch McConnell did, and now they are all on record making dishonest statements about the process... which they are now going to have to renege on in order to add more textualists to the courts... which was always the substantive motivation for all their actions anyway. This will be humiliating for them. They will have to pronounce either straightforward apologies or hilariously transparent new lies in full view of the voters... and it serves them right. They lied to the American People in 2016. They were wrong to do so. Fortunately, even at the time, nobody believed them. (I would love to see Democrats get their feet held to the fire about the 2013 filibuster reform in the same way, but, of course, American news media will never do that.)
Once the Republicans have been forced to abandon their dumb 2016 rule, then maybe, finally, everyone will stop pretending this is a game of norms, or tactics, or anything else. Judicial nominations are a game of power, on the most important substantive questions in American politics, played for all the marbles. This is precisely what many Americans voted for when they put Trump and the GOP Senate in power in the first place. Neither side would ever give up an opportunity like the Republicans just got--nor would they be sane if they did so.