Obama Risks Losing His Judicial Prize

By Stanley Kutler

During the Civil War and Reconstruction era—best described as our “Second American Revolution”—the political parties marched in virtual lock step in consistent, rigid opposition to each other. Democrats steadfastly resisted the Republicans’ organic program for a new nation, including the Homestead Act, the land-grant college program, a protective tariff, a transcontinental railroad, a national currency and a reordering of judicial power.

Party discipline soon weakened, and legislators again comfortably crossed party lines. Even at the New Deal’s high point, the Republican minority, after opposing many of the details, often supported major reforms, such as Social Security. More recently, in the mid-1960s, conservative Midwestern Republicans helped break filibusters and the obstructionist tactics of conservative Southern Democrats (many still mired in “lost cause” nostalgia).

We have now regressed. Rarely in our history has partisanship been more narrow and rigid. The Republican Party is frozen in an obstructionist, anti-Obama posture, while offering no counterproposals. Our vaunted democratic process is dysfunctional. Party comity and bipartisanship are at an ebb. As a result, the process of nominating and confirming federal judges has broken down.