The genius of our political system largely lies in its rules of procedure. Federal legislation must overcome the hurdles of bicameralism (1) and presentment, (2) assuring substantial deliberation and thereby improving the quality of legislation (except perhaps when the bill is called a stimulus). The constitution-making process has stringent supermajority rules that require provisions to obtain widespread consensus before they can be put beyond the ordinary democratic process. (3)
This Essay considers the procedural rules, particularly the operation of the filibuster rule, that relate to the judicial confirmation process. It also considers how the rules affect the kind of nominees, particularly Supreme Court nominees, who can obtain confirmation by the Senate. Although academics usually emphasize that they are presenting new work, we emphasize instead that we are presenting old work. We supported the filibuster rule when President Bush and a Republican Senate were in power; (4) we support it now that President Obama enjoys the support of a Democratic Senate.
In Washington, constitutional provisions and desirable procedures often mysteriously change their meaning with every election, as each party molds rules to suit its partisan interest. Thus, our first point is that if we are to avoid obvious partisanship we should consider the confirmation process under a veil of ignorance about the partisan identity of the President and the Senate. Under this veil of ignorance, we argue that the routine use of the filibuster will produce better Justices, where better is defined as Justices who have excellent qualifications and whose jurisprudential positions are closer to the median voter. In fact, the filibuster rule will temper the countermajoritarian difficulty--a central problem for constitutionalism created by an unelected judiciary with the power to invalidate the decisions of a popularly elected legislature. (5)
We begin by describing two important political truths that define the confirmation process. First, senators and presidents evaluate Supreme Court candidates largely on their ideological assessment of a candidate's likely votes. (6) Left-wing Democrat legislators, for example, were most likely to vote against the Supreme Court nominees of President Bush, a conservative Republican. Second, the President likely occupies a more extreme ideological position about the content of judicial review than the median senator. (7) Presidents must be nominated by primary electorates composed largely of members of their own party. (8) Primary voters tend to be more ideologically extreme than voters in the general electorate. (9) Consequently, rather than reflecting the views of the median voter of the electorate, presidents are likely to reflect the views of the median voter in their party, or to be even more extreme. Political scientists confirm that, as a result of these forces, recent presidents have reflected the median views of their party more than the median views of the electorate. (10)
By contrast, electoral forces tend to produce a body of senators who are likely to reflect both the center and the extremes of the electorate. (11) Senators are arrayed over a wider ideological space because of variations in the composition of voters in the states. New England Republicans are more liberal than most Republicans, and thus Republican senators elected from those states will be more centris. (12) Similarly, Southern Democrats are more conservative than most Democrats, which generates more moderate Democrats. (13) Consequently, a group of senators from the President's party are likely to have more moderate views than the President.
Thus, one should think of senators as arrayed along a continuum with the most left-wing senator at one and the most rightwing senator at one hundred. (14) A Republican President is likely to be right of center with a position of seventy-five. A Democratic President will be left of center with a position at twenty-five. …