Stipulate right at the start that I am not mad at @benjaminwittes over judicial confirmations. He is going in @TheAtlantic for the safe, respectable "both sides" position, though, and deserves to be dinged for that. Personally, I tend toward the conservative side...<thread>
2...with respect to judicial philosophy -- though conservatism to me means giving due respect to legislative history (as, say, Scalia did not) and recognizing the practical necessity of Chevron deference to agency judgement (as Scalia did but Kavanaugh does not).
3. Kennedy, a judicial supremacist, drove me nuts. But politicians tend not to get this far into the weeds. I agree with @benjaminwittes that many of them have gotten way too keen on putting judges on the bench who will ratify specific policy choices or try to remake society.
4. I think Wittes takes the easy way out in assuming this tendency is symmetrical between the parties. It isn't. It's not even close. It would be fair enough to point to Democrats' determination to appoint more women and minorities to the bench, and to resist open racists...
5...(like, back in the day, Jeff Sessions). This leads to more liberal jurists appointed in Democratic administrations, and increasing resistance to some Republican nominees. I suppose wanting civil rights laws to be enforced could be called a preference for a policy outcome.
6. But so could the reverse. And the reverse represents a fairly significant departure from recent judicial history. That's where Republican nominees to the Supreme Court in particular have drifted, and where the Republican Party has drifted with them.
7. While I don't want to rehash recent history of Senate judicial confirmations, the racial subtext of events after Scalia's death was a lot more "text" than "sub" -- a white Southern Senator demanding his entire party block any nomination from a black President nearly a year...
8... before the end of that President's term, and his entire caucus meekly following along, before Merrick Garland was even nominated. No meetings, no hearings, nothing. That @benjaminwittes looks at this & wrings his hands -- "oh, alas! The polarization!" does him no credit.
9. There are "both sides" situations in politics. This isn't really one of them. One party has been disciplined, determined, even zealous over many years to stock the judiciary with policy-oriented jurists empowered to enforce its preferences long after it loses elections.
10. The other has acted, with varying levels of energy, on a general preference for relatively more liberal jurists and a judiciary less dominated by white men (at the level of the Supreme Court, by white Catholic men). And there is something else.
11. One thing judges can do for their political sponsors is make it easier for one party's candidates to win elections. Politicians -- especially those uncertain of their own appeal to a broad electorate -- can be keenly interested in gaming the system in this way.
12. Set aside judicial philosophy for a moment and look at whether the recent majority of Republican-appointed Supreme Court Justices (that is, pre-Kavanaugh) has done this. Shelby County; Citizens United; Husted; Abbott; Janus. The Republican Party's electoral prospects...
13...were strengthened by every one of these rulings within the last dozen years. That they degraded the voting rights of some Americans, or flooded the electoral process with new money, or weakened collective bargaining power by Democratic-leaning public employee unions...
14... may have been the point, or merely coincidence. It doesn't really matter. Whether the Roberts Court is truly conservative or not, it has been reliably Republican. This may explain the passion behind Republican politicians' zeal to lock in their Court majority...
15... by confirming Kavanaugh, whether his long paper trail is examined or not. They know that once on the Court, he will help them keep their jobs -- not only has he been vetted for that purpose, but that's what recent Republican-appointed Justices have already done.
16. "Polarization" is an inadequate explanation for this: an easy out for an American legal elite reluctant to take partisan sides, that would prefer everyone respect its reverence for "qualifications" (that is, for credentials). It's an explanation too easy to be true. [end]
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