Senate Republicans Spend a Long Day Protecting the Courts in Order To Trash Them

The law, lawyers, and the court.
Dec. 6 2011 7:15 PM

Punch and Judge Judy

Senate Republicans spend a long day protecting the courts in order to trash them.

Arlen Specter.
Former Sen. Arlen Specter has been trying to get cameras into the Supreme Court for "25 years, give or take"

Photograph by Alex Wong/Getty Images.

There is nothing funnier than Senate Republicans talking about judges. In the span of three hours today, Republicans went from extolling the sweet incomprehensible mystery of the legal process, to effectuating a rankly political filibuster of a highly qualified nominee to the D.C. Circuit Court of Appeals. At a hearing this morning about putting cameras into the Supreme Court, we heard high-minded GOP talk of de-politicizing the judicial branch and the impropriety of reducing whole cases to “snippets.” Within minutes, 45 Republicans had voted to deny cloture to Obama’s nominee, Caitlin Halligan, based on snippets of her writing and a partisan campaign to demonize her. *

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Halligan’s qualifications are not an issue. She clerked at the Supreme Court and then served for six years as New York State’s solicitor general. Halligan was endorsed by Supreme Court experts across the spectrum. She was nominated in September of 2009 to the federal appeals court, and reported out of committee last March. She was filibustered today by a long list of GOP senators—including members of the Gang of 14 that once agreed to avoid filibusters of judicial nominees except under what they termed “extraordinary circumstances.”

There were no extraordinary circumstances here. There were, in fact, no circumstances at all. Instead of scrutinizing Halligan’s qualifications, Senate Republicans went after her for some of her work as solicitor general of New York. She wrote a nuanced 17-page brief arguing that "the Legislature did not intend to authorize same-sex marriage." In the hands of GOP opponents, a single line from that opinion became evidence of “a record of advocating extreme liberal positions on constitutional issues.”

This is particularly astounding in light of the Republican rhetoric at this morning’s subcommittee hearing about televising Supreme Court proceedings. When Judge Anthony Scirica of the Third Circuit Court of Appeals started talking about the ways television allows for “snippets” of oral argument to be broadcast out of context, the Republicans were horrified. Oh no, not snippets! (“Snippets” is the judicial term of art for what would happen if Stephen Colbert got hold of videotapes of oral arguments.) All morning we were treated to the loftiest explications of how legal thinking is far too complicated for Americans to consume without their brains imploding from the effort. (In 1989 Justice Scalia explained, “That is why the University of Chicago Law Review is not sold at the 7-Eleven.”) Today we heard that allowing cameras in the court might confuse young people about civics. Sen. Jeff Sessions (R-Ala.) said nobody can be expected to comprehend oral argument without reading all the briefs. So which is it? Is the law so simple that a mere sentence can capture an entire judicial career, as it does when Halligan writes? Or is it so complex that even gavel-to-gavel coverage of a case will fail to clarify its bottomless mysteries? Republicans today argued that it’s both.

When they ran out of substantive arguments against Halligan, her opponents turned to specious institutional ones. Of these, the best was Senator Chuck Grassley (R-Iowa)’s claim that the D.C. Circuit doesn’t need another judge, since its case load is so tiny. When he said that last March, there were two vacancies at the court. Now there are three. The case load per judge has grown since GOP Senators were insisting that the court needed 11 judges in 2005. Today the court has only eight.

But that willingness to second-guess the judiciary evaporated earlier this morning, when it came to legislation that would put cameras in the courts. Suddenly, it was all about deference to the judicial branch and its preferences. The strongest opposition to the proposed legislation was the heartfelt constitutional plea for separation of powers. “It’s their domain and we should respect it,” intoned Sen. Sessions. Sen. Mike Lee (R-Utah) said he voted to filibuster Halligan because “the D.C. Circuit caseload per judge is approximately one-fourth that of most other Courts of Appeals.” That same Mike Lee explained an hour earlier that “as a coordinate branch of government” the courts are entitled to congressional deference.

The final strand in the great GOP braid of hypocrisy came with the assertions that judicial behavior would be forever altered by the introduction of cameras in the court. (Justice Kennedy refers to this as “the insidious temptation to think that one of my colleagues is trying to get a sound bite for the television.”) Former Sen. Arlen Specter, who has tried to get cameras into the court for “25 years, give or take” testified today that “to the extent cameras in the court could encourage theatrics, it would be outweighed by the benefit of public understanding.” But the notion that justices and advocates morph into Kardashians the minute a camera goes on was never a question, except by Amy Klobuchar (D-Minn.), who suggested that she didn’t think the presence of a camera would lead to “Ruth Bader Ginsburg turning into Judge Judy.”

Now this idea, that justices and advocates whose every word and gesture are already captured by dozens of print reporters, and who can be heard in full on audio each week, will become so unhinged in the presence of television cameras that they will stop doing justice, may be the saddest argument of all. The justices are already apt to go for a “sound bite for television,” cameras notwithstanding. And for all the talk about how justices would change in the presence of a stationary camera, there was no evidence proffered that the change would be for the worse. It’s just as plausible that some of the justices, faced with the prospect of genuine transparency for the first time since their confirmation hearings, would behave more judicially, not less so. Either way, the notion that justices will suddenly “change” if televised stood in stark contrast to the speeches claiming that Halligan would never be able to “change” from a liberal partisan advocate to an impartial jurist.

There are interesting aspects to the fight over television cameras in the court, not least of which is whether they may be constitutionally foisted on the judicial branch by Congress. But amid those arguments lies a great deal of claptrap about the special, incomprehensible nature of judicial proceedings and the risks of reducing them to cheap ideological bullet points. That’s an amazing claim to advance on the very same day a judicial nomination is scuttled based on cheap ideological bullet points and the conviction that what judges do is always political. I’m hardly the first observer to point out the hypocrisy in a raft of Republican senators deploying a filibuster after years of railing against filibusters. (See, e.g., Lamar Alexander (R-Tenn.): “I would never filibuster any President’s judicial nominee, period. I might vote against them, but I will always see they came to a vote.”) But all the Republicans who’ve flip-flopped on the filibuster don’t have a patch on the ones who managed to argue in a single morning that the Judiciary is both too sacred to be tampered with, and too partisan to be allowed to function.

Correction, Dec. 7, 2011: This article originally stated that 54 Senate Republicans voted to filibuster Halligan's nomination. It was 45. (Return to the corrected sentence.)