“The Only Rule that Governs the Confirmation Process Is the Law of the Jungle”
In February 2016, after the tragic death of Justice Antonin Scalia, Benjamin Wittes and Miguel Estrada wrote on the demise of judicial confirmation norms in the Washington Post. The advice they offered then, remains relevant today: “Assume that anyone who claims to be acting out of a pristine sense of civic principle is being dishonest.” This may have been a cynical take, but it’s hard to argue against.
As they wrote at the time:
We have both argued for a world in which judicial nominees receive prompt hearings and up-and-down votes based solely on their objective qualifications — education, experience and temperament. But that has not been our world for at least two decades. The savvy citizen should recognize as much and heavily discount anyone who speaks in the language of principle about the rules or norms that do or should govern the treatment of either a judicial nominee or the president who sends that nominee to the Senate. As recent history demonstrates, the only rule that governs the confirmation process is the law of the jungle: There are no rules. There is no point in pretending otherwise, as much as many of us wish it were not so.
We have come by this view with extreme reluctance. One of us was a judicial nominee who never got a vote from the Senate but who nonetheless publicly encouraged the Senate to support President Obama’s appointees, including an overwhelmingly qualified Supreme Court nominee of the opposite party. The other wrote editorials for The Post for many years decrying unreasonable Senate treatment of nominees of the Bill Clinton and George W. Bush administration alike and also wrote a book arguing for a restoration of norms of expeditious and fair consideration of nominees. Both of us believe that when presidents nominate quali
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