JUDICIAL CONFIRMATION AND THE LAW OF THE JUNGLE:

Such a norm is what allowed for the unanimous confirmation of Justice Antonin Scalia, and near-unanimous confirmation of Ruth Bader Ginsburg, despite the fact that many Senators disagreed with them on many issues. (Consider: If pro-choice Senators should vote against a nominee who is skeptical of Roe, pro-life Senators should have voted against Ginsburg, who was replacing the reliably anti-Roe justice, Byron White.).

As Wittes and Estrada noted in 2016, however, this norm of largely deferring to the President’s nominees did not last very long. Indeed, some Senators actively sought to destroy it, finding other ways to obstruct nominees (as the Washington Post reported on Nov. 12, 1985) and eventually arguing that ideology alone was sufficient reason to oppose a judge’s confirmation (which was the point of a set of hearings held in 2001). Senators hold grudges, and unilateral disarmament is not a viable strategy, so the result was an escalating game of tit-for-tat. It may have begun in the 1980s, when the confirmation of judicial nominees was held up in election years, but rapidly metastasized, producing serious consequences. . . .

Like Wittes, I spent years arguing for various de-escalatory reforms, but neither side was interested. True de-escalation requires sacrifice—a willingness not to take advantage of the upper hand—and that’s not a language today’s politicians understand. President George W. Bush re-nominated one of Clinton’s failed appellate nominees (Roger Gregory), over the objections of Republican Senators. This minor gesture was never reciprocated, nor repeated. The lesson learned was seems to have been that de-escalation is for suckers.

When your political class is result-focused and capable only of short-term thinking, that’s what you get.