In a New Republic piece from last week, headlined “The Rise of the Hereditary Judiciary,” Matt Ford lays out the case that the federal judiciary up to and including the Supreme Court, which was always the least democratic branch, has over recent years become even less democratic.
(I spelled “democratic,” with a small-d, although it could also refer to a judiciary that has become more Republican.)
Ford starts out talking about a swap, agreed between President Joe Biden and Senate Republican Leader Mitch McConnell, in which Biden made a rather bad deal. If McConnell would stop using his position to block two appointments to federal prosecutor positions, Biden would accept McConnell’s “suggestion” of an appointee to a federal judgeship in Kentucky, a candidate with Republican and anti-abortion track records. (It was a bad deal for Biden, Ford suggests, because the federal judgeship is a lifetime appointment, while U.S. attorney appointments are not.)
But what caught Ford’s eye was that the judgeship to which McConnell’s ally would be appointed was not vacant at the time. In fact, the conservative and Republican federal judge who held the position had “conditioned her retirement on the confirmation of a specific successor,“ the very guy whom Biden apparently agreed to nominate in order to get McConnell not to block the prosecutor nominees.
Maybe these kinds of deals have a long history, but I don’t think so. It looks like a bad deal for Biden to make because of the lifetime appointment angle. But the case served to illustrate Ford’s bigger argument, namely that:
Republicans have successfully rigged the game of judicial nominees, up to and including Supreme Court appointments (or so Ford asserts and backs it up).
Maybe Democrats will follow the lead, or already are, but they are way behind. Republicans have played this game aggressively, up to and including Supreme Court nominations.
He titled his piece “The Rise of the Hereditary Judiciary” because federal judges have found ways to all-but-ensure some control over who will replace them, at least on a partisan basis. Both parties are now engaged in the rigging, but Republicans have been much better at it, which is one of the reasons we now have Supreme Court with six Republican-appointed justices and just three appointed by Democrat.
Ford argues in one specific instance that:
“Conservatives also pulled off a monumental victory for their cause in 2018 when Anthony Kennedy, the court’s swing justice and its fifth vote to uphold Roe v. Wade, retired that summer. His replacement, Brett Kavanaugh, was one of Kennedy’s former clerks. The Trump administration took great pains behind the scenes to assure Kennedy that his legacy would be intact if he retired; by one account, Kennedy conditioned his retirement on Trump’s nomination of Kavanaugh to replace him. It may have been the most consequential deal that Trump ever made.”
You get the idea.
I’m not sure this pattern is brand-new. Surely some justices have taken into account who was president when they contemplated retirement. But Ford makes a powerful case that the pattern has risen to new heights.
Republicans already have certain built-in advantages when it comes to gaining and holding control of the Senate and the presidency. Two of the last six presidential elections have been won by Republican nominees who lost the popular vote. Two more Republicans pulled it off in the 19th century. No Democratic popular vote loser has ever won that way. The majority of the smallest-population states are dominated by Republicans, which makes it easier for Republicans to produce a Senate majority with fewer overall votes, which can then confirm federal judges.
The Republican advantage in Supreme Court appointments (and other federal court appointments) isn’t based on a flaw in the system other than the flaw that enables popular vote losers to win the presidency.