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Partisanship Is Nothing New When It Comes to Judicial Nominees

With many cultural conservatives looking for Congress and President Bush to put a strong conservative stamp on the federal judiciary, it is no surprise that judicial nominations are the first battleground of Bush’s second term.

Even though the Republicans had succeeded in holding the White House and expanding their Senate majority, the Democrats are still able to hold off some of Bush’s more controversial choices for the federal bench. Senate Majority Leader Bill Frist (Tenn.), who is also a 2008 Republican presidential contender, is threatening to go “nuclear” and remove the Senate’s filibuster rules for considering judicial nominees.

Now, as both parties trade blows over who started the war over the judiciary, it’s worth remembering that such battles go back to long before either of today’s major parties existed. And, despite the cries of each party accusing the other of political posturing, there’s nothing inherently wrong with the judicial confirmation process. Politics should play a role.

Some of today’s discussion of the judicial nominating process operates under the premise that the selection of judges has been an affair typically devoid of partisanship and bad feelings. However, a simple check of the approval record for Supreme Court nominees belies this myth.

Ever since George Washington started nominating justices in 1789, 33 of the 148 nominees for the highest court have either been rejected by a vote of the Senate, had the voting on their nominations repeatedly postponed or filibustered into nonexistence, or have eventually taken their names out of consideration. Indeed, the policy of rejecting candidates began nearly immediately, all the way back in 1795, as John Rutledge, George Washington’s choice to be the second chief justice, was rejected by a vote of the Senate. In the 19th century, more than one-third of the candidates didn’t make it onto the court.

With this record of rejection, why do people today expect a bipartisan, smoothly running judicial nominations process? As with many other historical lapses, the more recent past clouds the mind.

Between 1894 and 1968, only one Supreme Court nominee was rejected. But it should be noted that this record of success was not due to some bipartisan love fest. Quite the opposite: This 74-year epoch was noteworthy for its long stretches in which one party dominated both the presidency and Congress. It was only after the election of Richard Nixon in 1968 that divided government became the norm. This time frame coincides nicely with most of the recent battles over presidential judicial nominees.

The issue has become more pressing in recent years as the fighting has migrated from the nine Supreme Court slots — all of which have been occupied for the past 10 years — down to the lower courts. Part of the reason for this migration is due to a big growth spurt. Since the end of World War II, the federal judiciary, on both the district court and circuit court level, has more than tripled. This has opened up a wealth of fighting opportunities, which helps explain why this subject has been in the news more than ever before.

The growth in the judiciary’s size has also come at a time when there has been a dramatic increase in the importance of these courts. Litigation has become the primary method to deal with disputes, both social and business. As the judicial caseload has exploded, and with the Supreme Court ruling on a smaller percentage of cases each year, the lower courts have become the de facto judicial rule-makers in all but a tiny fraction of legal actions.

Lower-court federal judges — and their state-level counterparts, as witnessed in the case of Terri Schiavo, the brain-damaged Florida woman whose feeding tube was removed by court order — are frequently in the news over decisions that touch on the most controversial political and business questions.

There is a strong — almost unassailable — argument to be made that the courts should not play such an outsized role in America’s political culture. However, this position against “judicial activism” is usually made by the loser of whichever major court battle has just been decided. In addition, the term “judicial activism” has been interpreted differently by Republicans and Democrats. So, from a practical standpoint, there is a need for both sides to closely monitor the ideology of candidates for the federal bench.

Over the next several years, the American people will be hearing a constant hue and cry over judicial appointments. But these complaints ignore the fact that the judiciary has always been a battleground. With judges assuming a major role in the decisions of the country, it would be negligent to ignore political ideology in approving judges. Let the battle begin.

Joshua Spivak is an attorney, writer and media consultant with the firm Ripp Media.

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