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Political Process

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

The full text of this Essay can be found by clicking the PDF link to the left.

“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.1×1. This is notably true in that subset of constitutional politics that consists of judicial decisionmaking. For instance, claims that the individual mandate imposed by the Affordable Care Act was unprecedented did quite a bit of work in NFIB v. Sebelius, 567 U.S. 519, 547–58 (2012) (Roberts, C.J.); id. at 649–60 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). For a cogent attack on this principle in the context of judicial decisions, see Leah M. Litman, Debunking Antinovelty, 66 Duke L.J. 1407 (2017). 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,2×2. This observation is hardly original. See, e.g., Jerome Frank, Law and the Modern Mind 148–59 (1930). 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 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 available pasts to others.

 


* Professor of Law, Cornell Law School. I am grateful to Will Baude, Mike Dorf, Joey Fish-kin, Randy Kozel, Marin Levy, David Pozen, Aziz Rana, Catherine Roach, and Justin Za-remby for helpful and thought-provoking comments on earlier drafts. The research and writ-ing 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.