Judicial Gridlock - Right now there is a borderline crisis in the federal judiciary. Since Clinton, the Senate has been refusing to accept the President's nominees for the bench. Thus gaping holes have started to appear in the Federal judicial ranks. Currently the Senate is filibustering all the judges that Bush wants to put in the judiciary.

There's a meme going about the conservative world lately, that Bush should use the recess appointment power as a club over the Senate Democrats:

The one real power Republicans have over the Democrats in this fight is the recess-appointment power. It's the only threat that could force Senate Dems to budge. ...
The main problem with a recess strategy is that it makes the GOP's best nominees temporary second-class judges. Not only would this fail to realign the judiciary, but it would deter the most promising judicial candidates from accepting. For this reason, recess appointments, as currently conceived, are not a credible threat. Well, until you add a twist.

President Bush could threaten to line judicial openings with committed conservative and libertarian recess appointees, people who are too old, too young, too smart, too conservative, or too burned by previous failed nominations to ever be considered for ordinary judicial appointments.... For the White House, the point of the exercise would be to propose a list of bright and articulate judges who are far more ideologically objectionable to the Democrats and their activist support groups than the president's current nominees. ...

The beauty of this threat is that it need never be implemented. Once a suitably long list is circulated privately — or, if need be, publicly — President Bush can offer not to appoint any of them in return for a floor vote on all his current and future nominees. Senate Democrats won't have to commit to voting for the president's nominees, they would just need to commit to allowing a full-Senate vote.

This does seem like a good idea. In fact, so good that one wonders why it hasn't happened before. The reason, I think, is that the Federal bench has never been as powerful as it is now; and thus as important (and high stakes). This comes in part from the incorporation doctrine, but largely from the awesome growth of government power starting with the New Deal. When the Feds just ran a tiny army and the post office, gentleman's deals about the Supreme Court were possible. Now they are not: the Feds control 30% of the GNP; your body (drugs, abortion); your children (schools); your job (affirmative action, regulation); your property (forfeiture, environmental regs); and your civil rights. And so we have seen the system for appointing judges gradually unravel over time. But starting with Clinton, we saw a tipping point - the time when the system catestrophically collapsed.

Now we are in an transition period. I don't think it will be possible to go back to the older way; too much is at stake. But it is also clear that the Federal judiciary will eventually grind to a halt if no appointments happen.

In the quoted section above, Randy Barnett suggests a possible equilibribium that may eventually obtain: by using the recess appointment power as a threat, the Senate may be induced to effectively give up the filibuster 60% supermajority approval for judges. Thus we will see less centrists appointments: more federalist judges from the Republicans (a good thing); more socialist judges from the Dems (bad).

Another possible equilibrium exists, though. That is that the minority in the Senate does not back down. In that case, what we will see is no more successful appointments to the judiciary; instead it will be run completely by recess appointees. Thus the entire Federal judiciary will change hands along with the presidency. Currently, IMO, the strongest argument for voting for one of the lesser-of-two-evil parties, is the "court argument": the need to get good judges appointed. You know: "we need to vote for Gore to protect Choice at the Supreme Court" - that sort of thing. If this second equilibrium happens, then it will raise the stakes in the "court argument" by a tremendous amount.

Probably what will result is something between the two extremes. Some appointments will take place. But a lot of recess appointments will also be there, continually. I don't see this as completely a bad thing. One upside: it allows us to take a judge for a test run. With hindsight, we can see that part of the unravelling of the judicial appointment process was the modern practice of nominating very young judges with little or no paper trail of experience. Remember Clarence Thomas' assertion that he'd never formed an opinion abortion? Ludicrous. A system wherein most judges are never appointed for life, at least until they have a track record, would cut off this sort of dishonest discourse. Still, on balance I think the system of lifetime tenure for judges is a good idea. But it may well go by the wayside.

It is important to emphasize that this future is a result not of some mystical modern "breakdown in civility" or something. It is a predictable consequence of democratic socialism, played out in the particular structure of our constitutional system.