In advance of this week’s showdown over judicial nominees, it’s helpful to take a step back to remember history. Very recent history.
In August 2000, Rick “Man on Dog” Santorum was standing firm in blocking a number of President Clinton’s judicial nominees, including some slated for the bench in Pennsylvania. As Santorum saw it at the time, he, as the state’s junior senator, should “help” Clinton by choosing judicial nominees to fill vacancies in his home state.
“I’ve told the [Clinton] White House from day one that, ‘You pick the Democrat, I’ll pick the Republican, and we’ll move him,’ ” Sen. Santorum told the Post-Gazette.
Chances are, Santorum would prefer that we forget all about this five-year-old quote, but as long I’ve dug it up, let’s consider the standard that one of the Senate’s leading nuclear option proponents used to embrace before Bush took office.
Santorum believed that the Clinton White House should have the authority to name some of his judicial nominees, but the president should also defer to senators — even those from the other party — to help fill vacancies in their home states.
This was hardly an unusual position for a senator to take; in fact, it’s the historical norm.
For most of U.S. history, appointments to federal district and circuit courts were “about patronage and not policy,” says David Yalof, a political scientist at the University of Connecticut who has studied judicial confirmations.
Abner Mikva, a retired circuit court judge appointed by Jimmy Carter, said that when he expressed an interest in a court post, Carter’s first question to him was: “How do your senators feel about this?”
Santorum, as recently as August 2000, saw a situation in which presidents and senators worked collaboratively to fill judicial vacancies, even if that included presidents nominating would-be judges from the other party, simply because a senator recommended him or her.
To be sure, this has always been extra-constitutional territory. As we’ve heard countless times of late, under the Constitution, presidents get to nominate jurists and the Senate gets to consider their nominations. Except, as Santorum explained so well, there was an unofficial tradition that gave home-state senators an added role in the process — which included de facto veto power. Santorum was more than happy to take advantage of this “understanding” when it suited his purposes, even when that meant denying up-or-down votes to judicial nominees.
What do you suppose the reaction would be from Santorum and senators like him if a Dem senator told the Bush White House, “You pick the Republican, I’ll pick the Democrat and we’ll move him”? If recent rhetoric is any guide, there’d be howls of disgust from Republicans on both ends of Pennsylvania Avenue. And yet, five short years ago, Santorum thought this was a perfectly reasonable standard and all the justification he needed to block judicial nominations he didn’t like.
If Republicans really want to reduce Dem filibusters, how about bringing back the dynamic whereby the president nominates would-be judges picked by Democrats to fill vacancies in their home states? We can call it the “Santorum Option.”