Unprecedented? Judicial Confirmation Battles and the Search for a Usable Past

"Unprecedented" is a dirty word--at least in the context of constitutional politics. The claim that some behavior is unprecedented carries with it a distinct whiff of impermissibility: if it's never been done before, then at the very least the burden is on those who would want to do it to show that it is permissible. (1) A thumb is very firmly placed on the scale against constitutional novelty. The claim that some activity is constitutionally novel is therefore a politically potent one. Of course, to call one act a "precedent" for another is not to state a fact about the relationship between them but rather to engage in a creative act of interpretation. Precedential relationships are made, not found, (2) and therefore charges of unprecedentedness represent a political judgment--but one that comes in the guise of a discovery of a fact about the world. In recent years, perhaps nowhere has unprecedented behavior been "discovered" with more abandon than in the context of judicial appointments. Part I of this Essay describes recent events in this domain, beginning in the George W. Bush Administration and culminating with the 2017 elimination of the filibuster for all nominees. In particular, it focuses on the discourse surrounding these reforms, noting that at every turn, accusations of "unprecedented" behavior have flown in all directions and have served as justifications for countermeasures, which are in turn characterized as unprecedented. Part II then reconstructs two pasts--two precedential pathways--for recent * rofessor of Law, Cornell Law School. I am grateful to Will Baude, Mike Dorf, Joey Fishkin, Randy Kozel, Marin Levy, David Pozen, Aziz Rana, Catherine Roach, and Justin Zaremby for helpful and thought-provoking comments on earlier drafts. The research and writing of this Essay were funded in part by a gift from the Charles Adelman Fund at Cornell Law School. I gratefully acknowledge the generosity of Charles Adelman and the support his gift provides to legal scholarship. Any remaining errors or infelicities are, of course, my own. events, one drawing on the history of legislative obstruction and the other on the history of confirmation politics. The purpose of these historical narratives is not to adjudicate particular claims of unprecedentedness but rather to highlight the ways in which any claim of (un)precedentedness involves particular, contestable constructions of the past. The Essay concludes with some thoughts about why we might prefer some avail-able pasts to others. I. The Present By the middle of 2004, Republicans were furious. Three years into George W. Bush's presidency, they were having at best very limited success in stocking the federal courts, and especially the circuit courts, with their preferred personnel. Democrats had held the Senate majority for most of the 107th Congress (2001-2003), (3) and they had used their power to good effect, confirming only 52% of Bush's (4) nominees to the courts of appeals. (5) But Republicans retook the Senate in the 2002 midterms and clearly expected the pace of appointments to pick up. Orrin Hatch, who became chair of the Judiciary Committee, announced that he would dial down the deference traditionally given to home-state senators, holding hearings and votes even for nominees opposed by both home-state senators. (6) Of the seven appeals-court nominees in that Congress who did not have the approvals of both home-state senators, five were voted out of committee. (7) Patrick Leahy, the ranking Democrat on the Judiciary Committee, solemnly intoned that this move would "be long remembered in the annals of the Senate and of our committee for the precedent set by [holding a hearing on a nominee over the objection of both home-state senators], for the hubris behind it and for the brazenness of the double standard it sets" (8) Majority Leader Bill Frist was unmoved; when the nominees came to the floor, he declined to honor hold requests on them. …