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Friday, February 03, 2017

More on Eight is Enough--the Appointments Process

Some further thoughts on Eric Segall's proposal for an eight-person, even-partisan-divided Supreme Court. I believe it produces a functioning Supreme Court, so the objections that it cannot work--that it will create disuniformity and uncertainty in federal law--are overstated. But it does not resolve problems in the appointments process, leaving in place gamesmanship and perverse incentives that may create more. I alluded to these in my JOTWELL essay and want to flesh them out further.

Broadly speaking, Eric's proposal has four pieces (put aside how to codify this): Eight Justices; no more than four Justices from either major party and each seat must be filled by a member of that same party; 2/3 supermajority to appoint an independent or someone who refuses to disclose her party affiliation (to leave open the possibility of a highly qualified independent); approval  by a majority of members on the Senate Judiciary Committee from the nominee's party.

One goal of the plan is to fix the appointments process. The theory is that because no appointment shifts the Court's ideological balance, the stakes are not as high. A Justice of one party always will be replaced by a Justice of the same party, with only a difference of degree depending on the party of the appointing President. Segall also hopes it will produce less ideological Justices--as a President of one party will seek out a moderate from the other.

The problem is that an ideological balance remains at stake with the appointment, just in reverse--while a seat is vacant, there is a 4-3 Court, tilted to one side ideologically. And that may affect the desire to appoint or confirm anyone at all or how willing an actor in the appointments process is to negotiate over a Justice from the opposite party.

After the jump, thoughts on how the game might play out in four situations, all with a President from Party A. The game changes depending on four variables. The result might not be what we expect.

Situation I: Senate Majority A, Justice A: This is the situation of maximum political control. The A's can appoint whoever they want and probably will look for an extremely A Justice. The only check is a B filibuster, but I do not expect the filibuster to survive the Gorsuch nomination. Franky, this is the only situation in which confirmation is possible anymore. Segall's proposal might not change that.

Situation II: Senate Majority A, Justice B. This is the situation that theoretically produces more-moderate, less-ideological nominees, as the President and Senate Majority look for the least B-ish/most A-ish B Justice they can find (a BINO--B In Name Only--if you will). The requirement that a majority of the B members of the Judiciary Committee approve the nominee tempers this somewhat, producing someone within the B mainstream.

But another perverse incentive arises here. As long as that B seat remains empty, there is a 4-3 Court with an A majority. President A (and Senate A) probably like that status quo and would be happy to maintain it as long as possible. This gives them an incentive to delay--or avoid altogether--any nomination or confirmation. It also gives them incentive to play hardball with the B members of the Judiciary Committee--accept our BINO or we are happy to leave the seat open and retain the partisan advantage.

Situation III: Senate Majority B, Justice A. Now the President and Senate majority at odds, with the B-majority Senate happy to keep the seat open, prompting the President to nominate a less A-ish Justice who is acceptable to the B Senate. This reflects the current system in periods of divided government, with Presidents often nominating a less-preferred choice to appease the opposing party in the Senate (think Anthony Kennedy or, perhaps, Merrick Garland--we do not know what Obama was thinking there). But the Senate holds greater power, because it benefits more from the vacancy in this new scheme than under the current system. It can and might hold out for an especially less-A-ish Justice on threat of not confirming anyone, preferring the partisan status quo to the evenly divided norm. (Of course, that threat has always been present with divided government--but 2016 showed that the threat is real).

Situation IV: Senate Majority B, Justice B. This is the flip of III, with the President lacking real incentive to fill the vacancy, happy to retain the 4-3 A Court. This gives him greater power to appoint a less-B-ish Justice., again with the take-it-or-leave-it position of not needing the vacancy filled if the B-majority Senate will not yield to his preferences.

So where does this leave us? In periods of divided government, power rests with any actor (President or Senate) from the opposite party of the seat to be filled, because he/they have no incentive to fill it. They can hold out for the least opposite-party Justice they can get, knowing that the vacancy status-quo favors their preferences. Or they can decide not to fill the vacancy at all by refusing to confirm anyone. In periods of unified government, actors will always be able to get the most their-party Justice, because nothing other than a filibuster will stop them. And they can get the least other-party Justice, because their lack of incentive to fill the vacancy allows them to overbear the limited check granted the other-party minority. In all, the new system either leaves existing or creates new perverse incentives that might break the appointments process further.

Power to limit such gamesmanship comes from the Court itself,  in two ways. First, a retiring Justice can make her retirement effective on confirmation of a successor. This prevents that 4-3 split, even temporarily. But this is impossible if the vacancy is an unexpected one due to death, illness, or disability.

Second, the Court could  limit by internal rule the decisions and judgments it will render in the event of a vacancy. For example: "In the event of a vacancy, the Court only can render judgment if five Justices [the number necessary to decide on an eight-person Court] agree; otherwise, the Court will DIG the case or hold it until back to full eight-Justice strength." The result is that no party benefits ideologically from a vacancy, because there can be no 4-3 purely partisan decisions. So both parties have incentive to make an appointment as expeditiously as possible, subject to (normal) negotiations over how A-ish or B-ish the Justice will be. It levels the bargaining positions between the President and Senate majority in times of divided government and between the President and the opposite-party Judiciary Committee members on an opposite-party appointment.

Unfortunately, such a rule would require the Court to take a position on a political controversy, something the Court (particularly this Chief) has been reluctant to do.

Posted by Howard Wasserman on February 3, 2017 at 10:31 AM in Constitutional thoughts, Howard Wasserman | Permalink

Comments

There is also a libertarian argument to be made. Several people have been rending their clothes about "The Framers! The Framers!" Mightn't it also be considered that, today, the Court has far more power over our lives than the Framers intended because the federal government is legislating in more and more areas? And as a result, appointments become deep proxy battles over social issues.

Posted by: YesterdayIKilledAMammoth | Feb 3, 2017 12:26:42 PM

Thank you Howard for engaging so seriously with my proposal here and on JOTWELL. I support the idea mostly by arguing that an evenly-divided Court will issue narrower decisions, engage in more bi-partisanship, and be less likely to impose rigid ideological agendas over time than Courts dominated by one political party (among other benefits). I also argue that the proposal would improve the confirmation process because now the political makeup of the Court is determined mostly by death, illness and/or politically timed retirements. You persuasively set forth several scenarios where, under my proposal, the system can still be gamed. For example, where the President is of Party A and the Senate is controlled by Party A, there is no incentive to replace a deceased Justice from Party B with a new Justice from party B because A has a 4-3 majority. My only response is that no system is immune from that kind of bad faith behavior (surely not our current one), and that my proposal assumes a good faith buy in with its major premise:in the long run, both political parties and the American people are much better off with an evenly divided Court than one where one political party can hold a majority position for an extended period of time (for all the many reasons I set forth in the paper). I don't think it is possible to construct a confirmation process resistant to bad faith manipulation (and I don't think mine is more susceptible to such manipulation that our current broken one). Thanks again for engaging (and thereby promoting) the paper.

Posted by: Eric Segall | Feb 3, 2017 12:56:40 PM

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