In the Art of War, Sun Tzu’s first principle is this: “He will win who knows when to fight and when not to fight.” The Senate Republicans have forgotten this maxim when it comes to the confirmation process for nominees to the federal district court bench.
With the publication of The Behavior of Federal Judges A Theoretical and Empirical Study of Rational Choice (the subject of earlier posts), there is now strong empirical proof that federal district judges as a group do not perform as politicians in black robes. The authors of the Behavior of Federal Judges, none of whom are “liberals,” conclude that for several reasons the decisions of federal district judges are not much influenced by political ideology.
If the authors are correct (and it is difficult to argue against hard data), why have Senate Republican taken to blocking or slow-walking the confirmation of federal district judges? From an ideological perspective, Senate Republicans have little to fear if a Democratic district court nominee is confirmed. From a raw political perspective, it is difficult to see how the confirmation of a district judge matters much to the base. On the other hand, the less intransigent Republicans are seen to be as a general matter, the better off they would seem to be when it comes to nominees that matter.
Let’s do a thought experiment. If the Senate Republicans were to confirm district court nominees just as fast as Senator Patrick Leahy wanted, would those same Senate Republicans be in a stronger position politically to raise hell with circuit court nominees or, heaven forbid, nominees to the Supreme Court?* In my view, to ask the question is to answer it.
Sun Tzu’s first principle of war is not debatable. Senate Republicans** ignore it at their peril.
*From a normative perspective, my view of a proper confirmation process is rather more elevated. But, the process as it exists now is broken, and I hold out no hope that it will be fixed anytime soon. This post makes the (sordid?) “comparative advantage” argument that for district judges, there are good and practical political reasons not to fight.
**When the situation is reversed, and it will be, the same holds true for the Democrats.