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Tuesday, November 01, 2016

Only Republican justices need apply?

With comments from Sen. Richard Burr about doing everything to prevent President Clinton from making any SCOTUS appointments, the question of the Republican endgame with respect to the Court is coming into stark relief. First it was "the next President should appoint." Now it is "the next President should appoint, unless it is a Democrat replacing a conservative such as Justice Scalia." None of this was ever a principled stand. But the absence of a meaningful principle now means that this is a moving line that Republicans are moving (and likely will continue to move) with impunity and without political repercussion and without logical (beyond pure politics) end.

So imagining that we have President Clinton/Republican Senate:

  • A Democratic President should not replace the "swing vote" (Justice Kennedy) because that shifts the balance of the Court when a Republican eventually appoints Scalia's successor.

  • A Democratic President should not replace a Democratic appointee (Ginsburg/Breyer) because that reifies the balance of the Court for another two generations. So the Dem seat should remain open.

   • If the Court can survive with 8, it is better off with 7 (assuming the lost Justice is not Kennedy), because that is an odd number that will avoid ties.

   • Hey, the original Court had 6 Justices. What was good for the Jay Court is good for the Roberts Court.

The caricature of the Republican position is that only Republican Presidents should be able to appoint to SCOTUS. That is looking less like a caricature. Especially since all of these arguments will be ignored (and forgotten) under President Rubio in 2021.

Two final points: First, this new rhetoric nothing to do with the argument that Eric Segall (Georgia State) has been making in favor of an evenly divided Court with seats permanently identified with one party. No one is expressing (or going to express) any reservations about having President Trump replace Justice Ginsburg. Second, while the Carrington Plan for the Court (a new Justice appointed every two years, with the 9 juniormost justices constituting the Court for all cases, except in the event of recusal) was designed to create term limits, the feature of regular and automatic biennial appointments also would ease some of the political controversy. Given the current climate, that is looking like the more significant piece of the proposal.

Next Wednesday, I am scheduled to do a talk for a Northwestern Alumni Association event on the election and the future of the Court. I have not begun to prepare the talk because I genuinely have no clue what is going to happen and thus no clue what I am going to say. Except that the center cannot hold and something--Segall's plan, the Carrington Plan, something else--is necessary.

Posted by Howard Wasserman on November 1, 2016 at 12:14 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Joe, My assertion is that as one congress ends and another begins, there must be a recess. The 114th Congress must end before the 115th can begin. The space between is the recess. And I say that despite Noel Canning's focus on the 3 day time frame. Noel Canning focused on intra- and inter-SESSION recesses, so recesses within a Congress. But the must also be an inter-Congress recess. Even under Noel Canning, I can't see how pro forma sessions are possible intra-Congress. I certainly could be being naive though. Or more litigation on that point would be necessary. But further senatorial intransigence seems to make that likely.

Posted by: BC | Nov 3, 2016 8:49:00 AM

"there will be at least one formal Senate recess every two years"

Will there? I gathered the policy these days was never completely being in recess (less than 10 days, except in emergencies not counting) with use of pro forma sessions if necessary to avoid that sort of thing.

Posted by: Joe | Nov 2, 2016 10:52:51 PM

"the egregious intellectual dishonesty"

Yes, perhaps, it's easier to challenge my integrity and patronizingly ramble on than substantively showing how I'm wrong.

Posted by: Joe | Nov 2, 2016 10:47:13 PM

Joe and Jesse:

I was going to respond point-by-point, but then I realized that the egregious intellectual dishonesty your posts exhibited invalidates them and that any points I made would be subjected to rank partisanship. Even with advanced degrees in Poli Sci, one thing I've never been able to rationalize is how people can be so willfully obtuse regarding politics. And by that, I mean that I understand the phenomenon, but I don't understand why it persists. It's always seemed to me that people would notice the ridiculousness of their behavior, that the puerile arguments would embarrass them. I've never been able to rationalize it on either side of the aisle.

Posted by: YesterdayIKilledAMammoth | Nov 2, 2016 7:09:40 PM

Unless I am missing something, the Republican "position" [that, collectively, they will refuse to confirm ANY HRC SCOTUS nominee and keep the seats "open" for a future GOP president] fails to account for a fairly important provision in the constitution: the Recess Appointments clause. Even as interpreted by the Court in Noel Canning, there will be at least one formal Senate recess every two years. So, Pres. Obama could use a recess appointment to put Judge Garland on SCOTUS until the end of the next session of the Senate (potentially 2 years given Senate shenanigans). When that expires, HRC could immediately issue another recess appointment to fill that seat with Garland or someone else and any others that the GOP senate has refused to address. On to infinity.

Hell, I think Pres. Obama SHOULD use a recess appointment to put Garland on SCOTUS if the Senate doesn't confirm him during the lame duck session. That will spare HRC [assuming she wins] having to fight a SCOTUS confirmation battle in her first year. By then, Garland will be the "devil you know" and could be renominated and confirmed. [See Ike's recess appointments of Warren Berger, Potter Stewart, and William Brennan, and Washington's recess appointment of John Rutledge as Chief, among others.]

Posted by: BC | Nov 2, 2016 6:23:08 PM

Okay, I won't be the person who says Republicans voted against Bork too. I'll be the person who says he got a vote, period.

Posted by: Jesse W | Nov 2, 2016 12:23:46 PM

"Bork's ghost casts a long shadow on Democrats"

A strongly conservative jurist rejected after hearings and a long discussion for an important swing vote. After a hiccup involving pot, a compromise pick by a Republican President is confirmed by a Democratic Senate.

What is the application here exactly? Garland is Kennedy (if Obama picked Pamela Karlan, Republicans could have had hearings & voted her down) and is older so a thirty year anniversary is much less likely. No hearing.

I don't think even with a Republican Senate a justice would not be confirmed for four years. But, let's not have poor comparisons. Posner exaggerates and in some fashion court of appeals make policy too (see that Sotomayor video). Trial judges make policy in various cases too. Politicians should be principled since that is a good thing. There are degrees here. Anyway, even it justices just make policy, politicians should be principled in making policy choices.

Posted by: Joe | Nov 2, 2016 10:33:30 AM

Why should any politician's approach to the Supreme Court be principled?

Several years ago, Posner correctly noted that it is not a real court; it's a quasi-political body deciding politically charged issues on the basis of something other than the law, at least in the controversial cases that the public most cares about.

Posted by: Curmudgeonly Ex-Clerk | Nov 1, 2016 11:47:53 PM

It seems that Bork's ghost casts a long shadow on Democrats. And before someone screams that Republicans voted against him, too...don'. Just don't. Don't be that person.

I know that the blogosphere is the one place that is safe from overreaction and exaggeration, but I have pretty severe doubts that a Republican senate can go a full four years without confirming someone. That said, if Hillary wins, my first choice would not be my first nomination, because the first nomination probably gets savaged.

Posted by: YesterdayIKilledAMammoth | Nov 1, 2016 10:34:10 PM

Just off-hand, it does strike me that Republicans will continue to move the line in the way you suggest. What the thinking was behind refusing to confirm Garland, I'm not sure, but what's become apparent since is that the Senators who took this line aren't going to get punished for it in a general election; of course the Republicans may lose the Senate, but there's no reason to think Garland has anything to do with it. Once it's established that the general electorate won't punish Republican Senators for refusing to confirm Democratic nominees, the next question is whether the Republican primary electorate will punish Republican Senators who do vote to confirm, and here I think the answer is a definite yes. Suppose Cruz filibusters whoever Clinton's nominee is and some Republicans defect and vote for cloture; I would think that could be a very difficult thing to live down in a primary, given that a robust majority of Republican primary voters believe Clinton is a wild-eyed liberal crook and that anyone she would nominate is unacceptable. (Also, given how unpopular Clinton will be compared with Obama, it's going to be easier to oppose her on nominations than it was to oppose Obama, not harder, even though they're losing their initial justification.) So long as Cruz puts the possibility of a filibuster on the table, which he's bound to do, any Republican Senator outside of New England who doesn't go along with a filibuster and isn't in complete control of party politics in his state has a serious problem. Of course, if they hold out long enough, we'll have a functioning 7-Justice Court.

Posted by: Asher Steinberg | Nov 1, 2016 3:33:23 PM

Further evidence that Republicans don't actually believe in democracy, unless they are in charge of it. This is deeply troubling, and indicates that Trump is a symptom of an even larger disease.

Posted by: Anon | Nov 1, 2016 2:16:14 PM

I have seen a few people argue "the Democrats would have done this too" regarding at least not filling the Garland seat in '16.

Don't see enough evidence of this "both sides do it" claim to agree. I still recall 2001, when some Democratic senators went along with Bush on more than one important thing. The level of hardball, especially with respect of being willing to block basic governmental tasks, has not been shown. I think Democrats, e.g., would have pragmatically confirmed Garland if the basic situations were switched.

This is partially a matter of different ideological standpoints. Republicans are now more dominated by groups who don't think inaction on the federal level is a bad thing. Democrats find that bad at some point even if the result is that the other party wins key things.

Posted by: Joe | Nov 1, 2016 1:38:54 PM

Thanks Howard for the plug and especially for pointing out how I'm not in bed with Cruz, et. al.!

Posted by: Eric Segall | Nov 1, 2016 1:22:34 PM

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