This Essay, written for a symposium hosted by the Wisconsin Law Review on judicial nominations, analyzes the failures of some of the tactics used on judicial nominations during the eight years of the Obama Administration. This Essay argues that the roots of these failures to do more on judicial nominations during the Obama Administration reside in a common tactical error made by political leaders in the Democratic Party: excessive cooperation with political forces that do not manifest the same behavioral patterns of cooperation. In addition to the tactical argument, this Essay has a taxonomical goal. Judicial nominations are a unique field of political activity, in which a series of more aggressive political strategies have emerged yet have not previously been identified and described. I label these three tactical tools as naming, numbing, and numbers. Naming means an Administration selecting nominees that identify their jurisprudential perspective with a particular frame — such as originalism — and promoting these nominees by also using that name. Numbing means the open consideration and/or selection of unusually provocative judicial nominees that generate political extremeness aversion. The political system is distracted from other nominees by the controversial political or actual nominee, and other nominees are framed as less controversial because their views are distorted by comparison to the controversial potential or actual nominees. Numbers refers to the simultaneous nomination of a large number of judges to the federal bench. The volume of nominees precludes the opposition from being able to direct resources towards a critical mass of nominees, and also generates political pressure to confirm a critical mass so as to avoid being labeled as obstructing the Senate. For both the tactical and the taxonomical, the goal is to take a step back from the day-to-day politics of judicial nominations to make some larger, more theoretical observations about the eight years of judicial nominations by the Obama Administration that will shed some light on potential tactics during later presidencies.
GW Paper Series
GWU Law School Public Law Research Paper No. 2017-24; GWU Legal Studies Research Paper No. 2017-24
Fontana, David, Cooperative Judicial Nominations During the Obama Administration (March 28, 2017). Wisconsin Law Review, Forthcoming; GWU Law School Public Law Research Paper No. 2017-24; GWU Legal Studies Research Paper No. 2017-24. Available at SSRN: https://ssrn.com/abstract=2942297