University at Buffalo - The State University of New York

Published: May 26, 2005

By JOHN DELLA CONTRADA
Contributing Editor

The battle over judicial nominees and filibustering rules currently taking place in the U.S. Senate is symptomatic of the bitter partisanship that for years has gripped the U.S. House of Representatives and has now overtaken the Senate, according to a UB expert on the judicial process.

"It's taken a while, but the Senate is finally catching up to the House as far as polarization," says Mark Hurwitz, assistant professor in the Department of Political Science, College of Arts and Sciences. "Increased polarization means both sides are dug in," he adds. "There used to be a bigger block of moderates in the Senate, which means filibustering wouldn't have been an issue in years past, but it is now."

Intense polarization means arguments over the value of filibustering are much less about Senate tradition—as both sides have contended—and much more about opportunism, according to Hurwitz.

"It's not about tradition, it's about who has power to push these things through, or stop them." Hurwitz says. "The Republicans are now pushing their power as much they can while they have the majority in all branches of government, and they think they can remain in the majority for a long time.

"Thus, they aren't concerned with a procedural devise—the filibuster—that aids the minority."

According to Hurwitz, the focus on judicial nominees at the lower-court level came into prominence during the Carter administration and has become an increasingly bitter political process ever since.

"Carter was the first to focus on the lower courts and made a point of picking women and minorities," Hurwitz says. "No president had ever done that before; they were very Supreme-Court focused. President Reagan made an even stronger push with his lower courts appointments and was largely successful."

"For the last 25 to 30 years, judicial nominations have become a real ideological battleground, with the 1987 Robert Bork nomination being ground zero," he adds. "Before that, lower court appointments barely were a blip on the screen."

Given the current environment of ideological polarization and bitter partisanship, and the power that the federal courts have, Hurwitz expects judicial nominations to continue to be an intense battleground.

"The Supreme Court issues fewer than 100 decisions a year, whereas the lower courts make thousands of decisions a year," Hurwitz points out. "The Courts of Appeals truly are effective courts of last resort for settling key issues.

"That's why the White House, the Republicans and the Democrats are not backing down on this."