Mainstream news coverage has a hard time making subtle distinctions between the behavior of the two political parties. When Democratic and Republican tactics are blatantly different – on voter suppression, for instance – journalists are often comfortable saying so. And when the parties act similarly – both soliciting large donors, say – journalists are good at producing “both sides do it” stories.
But when reality falls somewhere in between, the media often fails to get the story right. Journalists know how to do 50-50 stories and all-or-nothing stories. More nuanced situations create problems.
The 2016 campaign was a classic example. Hillary Clinton deserved scrutiny for her buckraking speeches and inappropriate email use. Yet her sins paled compared with Donald Trump’s lies, secrecy, bigotry, conflicts of interest, Russian ties and sexual molestation. The collective media coverage failed to make this distinction and created a false impression.
Now the pattern is repeating itself, in the battle over the federal courts.
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Democrats are on the verge of filibustering Neil Gorsuch’s Supreme Court nomination. If they do, Mitch McConnell, the Republican Senate leader, has signaled that he will change the rules and bypass the filibuster. The move may change the nominating process for years to come.
Much of the media coverage has described the situation as the culmination of a partisan arms race: Both sides do it. And that description is not exactly wrong. Democrats have engaged in some nasty judicial tactics over the years.
Most famously, they blocked the highly qualified, and extremely conservative, Robert Bork from joining the Supreme Court in 1987. Democrats also blocked a few qualified George W. Bush nominees to lower courts, like Miguel Estrada and Peter Keisler.
But if judicial politics isn’t an all-or-nothing story, it’s also not a 50-50 story. Too much of the discussion about Gorsuch’s nomination misses this point.
Anecdotes aside, Republicans have taken a much more aggressive, politicized approach to the courts than Democrats. The evidence:
– Republicans have been bolder about blocking Democratic nominees than vice versa.
The failure rate of Democratic nominees to federal trial courts since 1981 has been almost twice as high as the Republican failure rate: 14 percent versus 7 percent. There is also a gap among appeals court nominees: 23 percent to 19 percent.
The gap between the parties would be even larger if Democrats hadn’t eliminated the filibuster on lower-court nominees in 2013, allowing Barack Obama finally to fill more judgeships. Even so, Trump has inherited a huge number of vacancies.
The numbers above (which I put together thanks to Russell Wheeler of the Brookings Institution) apply only to two-term presidents, to keep comparisons consistent. But the sole recent one-term president makes the point, too: In 1990, a Democratic Congress created dozens of new judgeships, even though George H.W. Bush could then fill many.
Can you imagine Republicans expanding the judiciary for a Democratic president?
– Republican nominees have been less centrist than Democratic nominees.
Republican activists have built a strongly conservative network of judicial candidates. Democratic candidates are more idiosyncratic. Some are more sympathetic to prosecutors, others to the defense. Some are more pro-business than others.
No wonder, then, that Samuel Alito, Clarence Thomas and Antonin Scalia are among the most conservative justices ever, according to research by Lee Epstein of Washington University. By contrast, every Democratic-nominated justice of the last 50 years has been closer to the center.
– Merrick Garland, Merrick Garland, Merrick Garland.
The Republicans’ strategy has been straightforward. They have tried to deny Democratic presidents a chunk of judgeships, hoping the nominations will roll over. Then Republicans have made sure their nominees are very conservative.
The strategy reached its apex last year, when the Senate blocked Obama from filling a Supreme Court vacancy, even with the highly qualified, and notably moderate, Garland. It was unprecedented. Republicans set out to flip a seat and succeeded. Now the Senate is preparing to confirm Gorsuch, likely to be another historically conservative justice.
Republicans are bragging a lot about Gorsuch’s qualifications, which are legitimate. But this debate isn’t really about qualifications. If it were, Gorsuch wouldn’t have been nominated, because Garland would be on the court.
What can Democrats, and anyone else who laments legal politicization, do about it? Absorb the lessons of game theory.
Republicans have benefited from their partisan approach. They won’t stop just because Democrats ask nicely and submit to Gorsuch. Democrats are right to force McConnell to be the one who takes the partisan step of eliminating the Supreme Court filibuster. Likewise, Democrats should be aggressive in blocking Trump nominees to lower courts.
Paeans to bipartisanship may sound good, but in this case they don’t ultimately promote bipartisanship. Right now, the status quo is working quite well for one of the two parties. The country won’t return to a less politicized judiciary until both parties have reason to want it.
The writer is a columnist for The New York Times.