Some ask why Democrats are filibustering Judge Gorsuch, who has received accolades from even some of the most partisan, liberal lawyers. But a clash is inevitable — if not over this Supreme Court nominee, then surely over the next. Democrats are about to launch the first, partisan filibuster of a Supreme Court nominee, forcing an end to Senate rules that have helped foster centuries of bipartisanship.
But while everyone is discussing the partisanship over Judge Neil Gorsuch’s confirmation. The real question is being ignored: what has caused this increased rancor?
There is a lot at stake. In fact, there is more at stake than ever before.
The Supreme Court has recently considered all kinds of questions that never would have come up before about half a century ago. Can proving discrimination against a few female, Walmart employees serve as proof that the company discriminated against 1.3 million female employees? Does the Federal government have the power to determine who is a religious minister? Are residents undergoing training at a hospital to be considered students or employees? Is carbon dioxide, part of the very air that we breathe out, a pollutant that the EPA can regulate? Does the Constitution forbid prayer at school football games and graduation ceremonies?
When more is at stake, people fight harder to win. That general rule explains a lot, from how competitively people play sports to how hard they fight to win business contracts and elections. Two baseball teams playing in the seventh game of the World Series are going to play harder than two teams competing in August with no chance of making the playoffs. It explains why campaign spending has gone up at the size of government has increased.
The same is true of judicial confirmations. The Supreme Court and judges generally are much more powerful. And involved in every aspect of our lives than they were 50 years ago.
The judiciary’s expanding sphere of influence is manifested by the increase in federal cases — which has far outstripped America’s population growth. Since the 1960s, the number of circuit court cases has increased from 21 per million Americans to 223 per million. District court cases have grown over the same period from 448 to 1,252 per million Americans.
Entire branches of law only recently came into existence as new government agencies were formed. In the 1960s, the Equal Employment and Opportunity Commission (EEOC) and the National Transportation Safety Board (NTSB) were created. In the 1970s, many new regulatory bodies sprang up such as the Environmental Protection Agency (EPA), the Consumer Product Safety Commission (CPSC), the Federal Election Commission (FEC), the Occupational Safety and Health Administration (OSHA), the Nuclear Regulatory Commission (NRC), and the U.S. Commodity Futures Trading Commission (CFTC).
Each of these organizations created a host of new, often controversial regulations that fall under the jurisdiction of federal courts. Existing agencies were also granted new regulatory powers, resulting in a greater number of lawsuits.
There is yet another factor. Courts have increasingly become legislative bodies prone to essentially rewriting the law. As hard as it is to believe, before about eighty years ago it wasn’t that unusual for Republicans and Democrats to appoint judges from the other party. It didn’t matter so much, because judges could almost always be expected to enforce the laws as they were written. But long gone are the times when Republican President Herbert Hoover appointed a Democrat to the Supreme Court.
My book, “Dumbing Down the Courts,” shows that the length of confirmations and the rate at which nominations are defeated has moved very much in tandem with this expansion of judicial power. From 1900 through Franklin Roosevelt, the average Supreme Court confirmation took 17 days from nomination to confirmation. From Truman to Ford, it increased to 31 days. Since Reagan, it went up to 74 days.
Fortunately, if you are anguished by the partisan rancor over judicial confirmations. There is a solution: shrink the role of government.