An originalist approach to due process can take several forms, and Justice Gorsuch's "surprise" decision in Dimaya v. Sessions reinforces this.
“Man is no angel.” That’s what Balzac tells us in Père Goriot. Rather, man is “sometimes more of a hypocrite and sometimes less.”
Of course, Balzac wasn’t writing about the Senate’s Democrats or Republicans, or the way both react to controversial judicial nominees in present-day America. Still, his observation appears insightful to us today because it captures well partisans’ reactions to nominees whom they find objectionable. In such instances, senators are quick to tar and feather one another for being hypocrites with little apparent thought as to whether the criticism is warranted. They are driven to do so by the belief that disagreement with their position in support of, or opposition to, the nominee in question is illegitimate.
This is evident in senators’ reactions to Brett Kavanaugh, President Trump’s pick to be the next associate justice of the Supreme Court. Democrats have accused Republicans of hypocrisy for rushing to confirm Kavanaugh before the November elections. They point out that in 2016 Republicans prevented the Senate from considering President Obama’s Supreme Court pick, Merrick Garland, before the presidential election that November. For their part, Republicans have accused Democrats of adhering to different standards for vetting judicial nominees based on the party affiliation of the president. In Balzac’s words, senators are “sometimes more of a hypocrite and sometimes less.”
Balzac also tells us that when it comes to a hypocrite “fools say that he has or has not principles” based on the extent of his hypocrisy. And we would be fools to take senators’ flip flopping at face value, as if such behavior reflects nothing deeper than mere hypocrisy. Both parties are belligerents in the Senate’s ongoing confirmation wars. Their members predictably exchange battle plans based on the nominating president’s party affiliation.
But on closer inspection, such behavior does not represent routine flip flopping. Rather, its prevalence signifies the extent to which senators today think differently than they once did about the federal judiciary, especially the Supreme Court, and the role it plays in American politics. That is, senators defer to the courts to do more policymaking at present than they ever did before. Such deference raises the stakes of each confirmation battle, motivating senators to do whatever it takes to win. When viewed from their perspective, the senatorial combatants are not acting hypocritically by engaging in behavior they once declared illegitimate. For them, the ends always justify the means.
For example, both Democratic and Republican majorities have used the Senate’s Judiciary Committee to block candidates for the federal bench nominated by an opposition-party president. Doing so effectively prevents their confirmation because a candidate is only eligible for an up-or-down confirmation vote on the Senate floor if the Judiciary Committee reports his or her nomination or is otherwise forcibly discharged from its further consideration by a majority of the full Senate.
After Republican Jim Jeffords of Vermont switched parties in May 2001, Democrats assumed the majority and used their new-found control of the Judiciary Committee to block some of President George W. Bush’s appellate nominees. They pointed out, correctly, that Republicans did the same thing to a number of President Clinton’s appellate nominees in the late 1990s when they were in the majority. At the time, Democrats claimed that Republicans were intentionally keeping the seats vacant so that Bush could fill them should he win the presidency. And a decade later, Republicans accused Democrats of again using their control of the Judiciary Committee to block judicial nominees at the end of the Bush presidency so that Obama would instead have the opportunity to nominate candidates of his choosing. Finally, Republicans used their control of the Judiciary Committee in 2016 to block Garland’s nomination. Their stated reason for doing so was to give the next president the opportunity to fill the seat.
Democrats and Republicans also change how they view long-standing practices, like the filibuster, that make it harder to confirm a president’s nominees. Both parties have criticized the filibuster when it prevented action on their president’s nominees and supported it when it did not. This is evident in the juxtaposition of the 2005 and 2017 Republican efforts to limit the filibuster with the 2013 Democratic effort to do so. In 2005, Republicans overwhelmingly supported limiting the filibuster. At the time, Bush, a Republican, was president. And Trump, another Republican, was president in 2017 when they successfully limited the filibuster for Supreme Court nominations to confirm Neil Gorsuch. Conversely, Republicans opposed limiting the filibuster in 2013 when Obama, a Democrat, was president. For their part, Democrats opposed limiting the filibuster in 2005 and 2017 when doing so would have made it harder for them to block a Republican’s judicial nominees. But they supported limiting the filibuster in 2013 when doing so made it easier for them to confirm a Democrat’s judicial nominees.
Acknowledging that both Democrats and Republicans react differently to controversial judicial nominees based on the president’s party affiliation does not mean that all nominees are equally qualified to serve on the federal bench. Nor does it mean that there are no significant differences between the two parties when it comes to the role the courts should play in American politics. Rather, it suggests that members in both parties now share a common view of the confirmation process as a means to an end instead of as a check on the president’s ability to pick the nation’s judges on his own. Consequently, senators defer to the president’s nominees in all but the most extraordinary circumstances and, more importantly, try to delegitimize any opposition that they may face rather than debating it on the merits.
While this dynamic is also present in the legislative process, it is most pronounced when the Senate considers judicial nominations. And it stands in contrast to the role that the framers of the Constitution wanted the Senate to play when they required that its members first confirm judicial nominees before the president could finally appoint them to the federal bench. The framers gave the Senate a co-equal role in the process along with the president to protect the judiciary’s independence from encroachments by both branches. Yet partisanship undermines this structure when members believe that the end of the confirmation process is to confirm their president’s nominee.
Ending the confirmation wars and restoring the Senate’s proper role in debates over controversial judicial nominees requires that its members acknowledge their legitimate means as well as the rightful ends of the process. Until then, they will remain blinded to the legitimacy of the opposition and will thus resort to ever-greater departures from the rules and past practices to achieve their end. The outcome will be continual escalation of the confirmation wars and the ultimate politicization of the federal judiciary.