The Confirmation Wars Are Over

I have never lost a public debate more completely than I have lost the debate over judicial confirmations. For many years, across administrations of both parties, I clung to the increasingly minority view that each judicial nominee ought not be a skirmish in a larger war for the courts, that the Senate should tend to defer to the president in its exercise of the power to “advise and consent” on nominees, and that the Senate should treat nominees decently and without undue delays. I started arguing this position during the Clinton administration; I maintained it during the Bush administration; I wrote a book on the subject warning of the dangers of the erosion of norms surrounding confirmations.

I stand by everything I argued.

But those of us who argued for de-escalating what I called the “Confirmation Wars” got our clocks cleaned. We lost decisively—on every front and against every foe. We lost at the hands of Democrats and Republicans alike. We lost at the hands of interest groups. We lost at the hands of law professors. Perhaps most importantly, we lost at the hands of voters—party-base voters, to be precise—who demanded of their elected officials precisely the kind of activity of whose dangers we warned. In a democracy, voters tend to get what they want in the long run. In this case, it didn’t even take very long.

And so we come to a place