Even before the Chief Justice retires, newspapers and the blogosphere are focused on the question of the upcoming confirmation wars. (I won’t link here to all of the news reports and commentaries; Howard Bashman has comprehensively linked to the relevant material.) Everyone is expecting a bruising confirmation battle, and there is talk about what can be done to minimize the chances of a fundamental breakdown in the Senate, perhaps leading to the use of the so-called “nuclear option,” whereby Senate rules are changed by a simple majority vote of Senators to overturn the Senate’s past practice of requiring 60 votes to end a filibuster and vote on a contested nominee.
Larry Solum and I debated some of these points back in early2003, and I expressed skepticism that Republicans would use the nuclear option, particularly to get in place a lower court judge. Republicans would have to calculate (1) that they’d be in the majority for such a long time that they would not be on the beneficial end of the Senate rule that protects a minority from the will of the majority and (2) that the costs in terms of loss of cooperation with Democrats would be worth bearing in order to get these changes. For lower court judges, I think that the calcluation is easy. Republicans have an incentive to threaten the filibuster, but not really to use it.
The calculations, however, may be different for a Supreme Court justice, which is both high salience (giving the opportunity for Republicans to paint Democrats as obstructionists) and is high stakes. The Supreme Court is an issue crucial to both parties’ bases, and therefore there is reason to be worried that Republicans could in fact escalate to the nuclear option. That would require most Republicans to go along however, including Republican Senators like John McCain and Olympia Snowe—something still far from likely. If the nuclear option is triggered, it will be bad for the Senate and for the country, further polarizing an electorate that is already polarized at unprecedented levels in recent history.
So what can be done? Some have suggested term limits for Justices. But term limits severely undermine the independence of the judiciary. Take a judge who is in her mid-40s, and gets an 18-year Supreme Court term. Given today’s life expectancy, such a judge can still expect to do well in the private sector following the term. A long horizon of the future, as I’ve argued in my piece on the election and appointment of judges (“High Court Wrongly Elected:” A Public Choice Model of Judging and Its Implications for the Voting Rights Act, 75 N.C. L. REV. 1305 (1997)), is the best way to assure independence, and a shorter term is a better way to insure that judges are accountable to political (and financial) pressure. The shorter the term, the greater the threat to independence.
The power here is in the hands of the President more than anyone else. There’s a world of difference between the nomination of a Michael McConnell versus an Edith Jones. That is, if the President chooses as a nominee someone (no doubt, a conservative) who is respected for his or her intellect and integrity by people on both sides of the political aisle, it will be much less likely that Republicans will have to go nuclear and Democrats will have to retaliate. If Democrats approve a McConnell nomination, that could go a long way toward diffusing tensions, though it will also give the Democrats renewed strength to oppose some lower court nominees and an Edith Jones nomination down the road.