Book Review: Carl Hulse's "Confirmation Bias"

"Mitch McConnell made a snap decision one night in 2016," writes veteran New York Times Washington correspondent Carl Hulse in his latest book, Confirmation Bias: Inside Washington's War Over the Supreme Court, From Scalia's Death to Justice Kavanaugh. "The consequences will reverberate for decades" (Hulse, 2019, p. 290). The night in question was February 13, 2016. Justice Antonin Scalia was found dead at a resort ranch in Texas, news that soon began to make the rounds in Washington and the nation at large. A rarefied hero in conservative legal and political circles, possessed of an originalist bent and considerable intellect, Scalia's death was mourned bipartisanly before grief was subsumed by the political implications.

It was the last year of the Obama presidency, and Senate Majority Leader Mitch McConnell (R-Kentucky) was determined to have a conservative installed in that now vacant seat. Chances are, Obama wouldn't do it. So McConnell hedged his bets on a Republican winning the 2016 election, and made the unprecedented decision to stonewall President Obama's nomination of Judge Merrick Garland to fill Scalia's seat.

How did we get to that point, the point where one party was willing to set aside bipartisan advice-and-consent in the ever important process of appointing and confirming a qualified individual to life service on the highest court in the land?

The story goes back three decades to the 1980s, with the contentious federal court confirmation hearings of the Reagan years after notable conservative successes at filling influential court seats. Then there was the hearing for Supreme Court Justice nominee Judge Robert Bork in 1987, in which Senator Edward Kennedy's opening day speech painted a dystopian future for women and minorities if Bork's conservative legal philosophy was allowed to reign supreme.

A concerted Democratic effort to block Bork on a more partisan basis had inadvertently been started, leading to the defeat of Bork's nomination and the entry into the political dictionary of a new verb, "borked," to describe a form of political obstruction via character assassination and other underhanded tactics more common to election fights rather than the process of appointing impartial legal minds to the federal judiciary (Hulse, 2019, p. 58).

It turns out, the Bork fight was a warm-up for both camps, who recognized the increasing urgency of the judicial fights in leaving long-lasting ideological legacies on the courts. Republicans would build up considerable organizational muscle for the pushing of conservative legal minds into the courts via prominent think-tanks and advocacy groups like the Federalist Society (est. 1982) and the Judicial Crisis Network (est. 2005). However, liberals of a more institutionalist bent would be late to the game, founding in 2018 the Demand Justice organization to counter the Judicial Crisis Network by pushing for more progressive judicial minds.

Meanwhile, partisan court appointment principles would come to be ingrained in the system when in November 2013, frustrated Democrats altered procedural rules to allow for the bypassing of the filibuster (a 60-vote threshold needed to be overcome before an appointee was voted upon) in the case of judicial appointments lower than the Supreme Court level to overcome stalwart Republican opposition to Obama federal court nominees. This cap would be removed for Supreme Court picks in May 2017 to confirm Trump's first Supreme Court nominee, Neil Gorsuch, and later, his second, Brett Kavanaugh, on simple majority, largely party-line votes. Armed with both the 2013 and 2017 rule changes, and the considerable expertise and resources of the Judicial Crisis Network and the Federalist Society, Republicans approved slews of conservative candidates at the federal level with ease, a rare success of the Trump administration where other policy fights have not been as successful.

In his concluding remarks, Hulse warns that the rule changes of 2013 and 2017 have set in motion a toxic cycle of partisan legislative agendas getting altered or thrown out when the other party takes power, severely hampering the ability of the federal government to sustain meaningful policy initiatives and other governing projects with the aim of protecting American citizens (and the government is already struggling to do that on limited budgets and personnel resources; see my post reviewing The Fifth Risk for a lengthier discussion of federal organizations under the current administration). Moreover, the courts mediating those fights are increasingly seen as untrustworthy, merely a partisan extension of the other two branches, with the large numbers of Trump appointees tilting the balance to the right for decades.

How will this shift in the ideological balance ultimately impact rulings on key Trump policies increasingly challenged by liberal legal advocacy groups, such as those regarding immigration or regulatory rollback?

Stay tuned!


Works Cited:

Hulse, Carl. (2019). Confirmation Bias: Inside Washington's War Over the Supreme Court, From Scalia's Death to Justice Kavanaugh. New York: HarperCollins.