Judicial Nominations

by Norman J. Ornstein, Resident Scholar, American Enterprise Institute (AEI). Ornstein and Thomas E. Mann are authors of It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism. 

Few members of the Senate have professed more concern about dysfunction in the nomination and confirmation process than Sen. Lamar Alexander (R-Tenn.). Alexander is a wonk who cares about policy-making and problem solving. And, most importantly, it gets personal with Lamar -- he had his own unpleasant experience with the Senate's long-broken confirmation process when he came up as a nominee for Secretary of Education. Commendably, Lamar worked in a bipartisan fashion last year, with Sens. Susan Collins (R-Maine), Joe Lieberman (I-Conn.), Chuck Schumer (D-N.Y.) and others to streamline the process by removing a number of lower level executive nominees from the requirement for Senate confirmation.

What has happened to that Lamar Alexander? His persona seems to have been kidnapped and replaced by partisan warrior Lamar Alexander, participating in a series of abuses of the confirmation process that are both denying a president elected by a wide margin from selecting his own people to serve and attempting to block agencies from being able to function by filibustering or applying blanket holds to clearly qualified nominees -- what Tom Mann and I have called the new nullification.

We have seen the latter both with the NLRB, ever since Obama became president in 2009, and the Center for Medicare and Medicaid Services, the agency charged with implementing Obamacare, since the Affordable Care Act was enacted. Faced with the prospect of a National Labor Relations Board actually functioning and making decisions that reflected the majority, Republicans in the Senate filibustered to block any nominees, no matter how qualified, to prevent the agency from having a quorum. Frustrated after a long period of such behavior, Obama used recess appointments to get the agency working-- and then had to deal with a sweeping appeals court decision, written by the highly partisan judge David Sentelle, the same judge who fired competent and fair-minded Whitewater Independent Counsel Robert Fiske and replaced him with Kenneth Starr, outlawing almost all recess appointments. The decision is under appeal, but Alexander is calling for the removal of Obama-named commissioners, and also calling for them to be blocked from re-nomination in the future, before the court case has been finally litigated. 

by John Schachter

Lest anyone still doubt corporate influence (or is it control?) over the nation’s high court, Adam Liptak’s nearly 3,000-word article in yesterday’s New York Times should resolve any uncertainties. The Court’s business rulings, Liptak notes, “have been, a new study finds, far friendlier to business than those of any court since at least World War II. In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes.”

The latest report, published in April in The Minnesota Law Review, looks far beyond cursory glances and anecdotal examples, studying 2,000 court decisions over a 65-year-period ending in 2011. “The study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10,” Liptak notes. “But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.”

Before right-wing skeptics criticize the latest report as biased propaganda, we should note that the authors who prepared the report – Lee Epstein, a USC professor of law and political science; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago – are no one’s idea of a leftist cabal.

This study, meanwhile, comes on the heels of a new report by the Constitutional Accountability Center (CAC) that found that the Supreme Court continues to hear more cases involving business interests and “that the Chamber [of Commerce] continues to win the vast majority of its cases pending before the Roberts Court.” ACS’s own Jeremy Leaming took a look at this report and the broader issue just four days ago in a post for ACSblog.