On slaves setting the stage
Nominations are so contentious these days because courts are increasingly politicized after the passing of the 14th Amendment, which was approved following the Civil War to give slaves and all people equal liberties under the law. That meant the court had to protect liberties it never had to weigh in on before – individual rights of minorities, women, the disabled, and the list goes on. Brown v. Board of Education is a prime example where the justices ruled that separate but equal was not valid. All of those decisions are highly politicized and so a judge’s personal views and track record can greatly sway the courts’ decisions and thus what is legal in this country.

On the contentious Gotcha Game
The appointment process to the courts has been much more contentious since the ’70s when Nixon was president. Nixon nominated two potential judges and Congress squashed both of them. That set the tone and it’s been very heated since. I mean, remember Clarence Thomas? That was practically a soap opera. It’s become a Gotcha’ Game, meaning both liberals and conservatives look at nominations as a life or death issue. The liberal interest groups will resist anyone they deem too conservative and conservative interest groups will do just the opposite.

On Clinton and Bush
Clinton ran into this with his Attorney General appointments and Bush did with recent nominations to the United Nations and appeals courts when the Democrats in the Senate used the filibuster but ended up letting the appointment pass because the Republicans threatened passing legislation to eliminate the filibuster altogether.

On the undemocratic – but effective – filibuster
The filibuster has been used in the Senate for more than 100 years to protect minority rights. Basically, they stand and talk, refusing to let a vote come to pass because the Senate has a tradition of unlimited debate. Eventually, the majority pulls the legislation to move on to other things. It’s undemocratic because it’s taking away the majority rule decision, but at the same time, it allows a minority to have a voice that may prevent legislation from being passed especially when Congress and the President fall in the same party as we see today. So in the case of a Supreme Court appointee, just because the President may want his appointee to pass, Congress is not a rubber stamp and never has been a rubber stamp. Using the filibuster can be a way for the checks and balances to work.

On times when checks and balances don’t work
Checks and balances work less well when a single party controls the Senate, House, and Presidency or when there’s a perceived crisis. Domestically, that crisis could take the form of severe economic downturn or an increase in crime. And abroad, it happens when times are unstable or in times of conflict like what we’ve seen recently with Afghanistan and Iraq. It’s not unique for Congress to go into its shell, giving up its role in the checks and balances, in the name of supporting the flag.

On checks on homeland security
In terms of international policy and national security policy, they haven’t worked that well in the past few years. The response to 9/11 and international terrorism has led to less than full consideration of Congress to evaluate whether things like the Patriot Act were in their best interests longterm. But we’re beginning to see a turn in that though. For example, Congress – both Republicans and Democrats – have not been happy with the way the money dedicated to protecting internal security has been spread around. They’re taking a closer look rather than just accepting what Bush wants. And the Patriot Act is up for renewal. The House is voting similar to what Bush wants, but the Senate is not nearly as supportive.

On whether they’re working today
I think the checks and balances are certainly still working, but whether they are working as well as they could or should is another question. What it comes down to is that they are in place, but it’s up to each branch to make sure they are used properly.