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Wednesday, February 01, 2017

Framing the coming debate on the Gorsuch nomination

Neil Gorsuch will be on the Supreme Court. Nevertheless, speaking purely as a political partisan, I would like to see Democrats filibuster the nomination and force Republicans to own the decision to eliminate the procedure. Or that both sides agree to end the arms race and adopt Eric Segall's plan to hold the Court at eight.

But the framing of the strategy is going to be essential. It is too easy to say (as the press already is saying) that a filibuster is extraordinary and unprecedented and this would be only the second time it has happened. Forget that the filibuster of Fortas's nomination as Chief was bi-partisan and done when the filibuster was an extraordinary step (as in the then-fresh filibuster of the Civil Rights Act of 1964), rather than a routine part of Senate business producing a de facto super-majority requirement. The year 1968 was the dark ages for Supreme Court confirmations and filibusters, no longer a meaningful historical analogue.

Similarly, the argument has to be more than that the seat was "stolen" from President Obama and Merrick Garland. Senate Republicans did not merely deny Garland a hearing, but did so for a purported principle--a President should not fill a SCOTUS vacancy in an election year/in the final year of his term (although I have never been clear whether that was the final year of a term or only in the final only of a second term).*

[*] That was the stated principle; I am not saying I believe it. Mitch McConnell would have led the Republicans to do the same thing had Scalia died on December 13, 2015 or August 13, 2015 (when the Republicans were already holding primary debates). Or, frankly, anytime after the 2014 mid-terms.

So the Democrats need to find their own principle beyond tit-for-tat.

One principle is that, given longevity, the central role of the Supreme Court in the legal and political scheme, and the increasing polarization in society, Justices must command super-majority support to be confirmed. True, this principle is not found in Article III or history and the lone example of a filibuster shows it has not been used in this context. But the "no election-year confirmations" principle also had no basis in Article III and ignored a history of election-year appointments (including 100 years prior, the confirmation of Louis Brandeis). The (new) rules of the game do not appear to estop a Senate caucus from adhering to new principles; the only question is whether the principle sticks, as the GOP's move did, or not, as will happen when Senate Republicans eliminate the filibuster for SCOTUS nominations.

I would add that this principle flies less in the face of text than McConnell's. The idea of no appointments in the final year disregards that a President serves for four years (January 20, Year 1-January 20, Year 5) and that vested in him for the entire four years is the executive power, including the power to make appointments. McConnell's principle essentially says that power runs out sometime earlier, although it is not clear when (again, I expect it would be Election Day of Year 2).

Alternatively, Mark Tushnet suggests a principle of no appointments by a President who lost the popular vote. It last happened 1893, when lame-duck Republican Benjamin Harrison appointed a Democrat a month before newly (re-) elected Democrat Grover Cleveland took office. Again, however, we have had other election-year appointments in our history (and most more recently than 1893), all of which Republicans ignored last year.

Ultimately, the principle I believe we end with* is this: No one will be appointed to the Supreme Court except where the President and Senate majority are of the same political party. I do not necessarily believe that is a normatively good principle. But it is functionally where we now found ourselves in the current political circumstance.

[*] This assumes the Democrats decline to filibuster to save it for another day, which would be politically stupid. But then, Senate Democrats . . .

Update: But see Richard Primus' argument that the real threat is Donald Trump, not a judicial nominee who might have come from any Republican President.

Posted by Howard Wasserman on February 1, 2017 at 02:36 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Another false debate that goes around in circles without even touching the subject proper.

Posted by: YesterdayIKilledAMammoth | Feb 3, 2017 1:40:01 AM

"but in the eyes of the public the blame for eliminating the filibuster falls (and always will fall) on Harry Reid and Senate Democrats"

Many of the public don't know what a "filibuster" is and how the press phrases things often makes it sound like it simply takes sixty votes, full stop, to do various things. But, maybe the idea is whatever "in the eyes of the public" is assumed (various confused things), "the blame" here is not quite so simple.

The actual details include cases where judicial nominations were blocked simply because Republicans didn't want to fill the slots and executive appointments to non-judicial agencies were blocked until the Democrats changed the laws it carried out. We can spend all day discussing the "whole story here," but at the very least, the game where the Republicans do various hard-line things, screw up the government in some fashion & Democrats get blamed is tiresome.

Posted by: Joe | Feb 2, 2017 5:20:54 PM

I'm not sure why Joseph Biden's (or AM McConnell's) improvised humbug about appointments is the least bit interesting to you.

The Senate was within its rights to block Merrick Garland for whatever reason they had.

Posted by: Art Deco | Feb 2, 2017 4:07:50 PM

The filibuster practice is properly eliminated for every kind of floor proceeding.

Posted by: Art Deco | Feb 2, 2017 4:05:11 PM

"I would like to see Democrats filibuster the nomination and force Republicans to own the decision to eliminate the procedure."

"The filibuster is lost because all three branches of government are under the control of one party and they have no reason to retain it."

Maybe I missed something, but in the eyes of the public the blame for eliminating the filibuster falls (and always will fall) on Harry Reid and Senate Democrats (i.e., the party that "[had] no reason to retain it" in 2013). Perhaps Republicans would have considered eliminating it anyway, but it would have been much harder sell if Reid had not already gutted it. The only reason Republicans and Trump are able to act so casual about removing it now is that the stage was already set for it to be removed, with hardly any political repercussions.

Posted by: TJM | Feb 2, 2017 1:38:46 PM

M. Rad,

I think you're on to something. The justices would take turns forming a panel for a week to hear cases and would then draft a decision, but any decision by those justices would have to be ratified by an en banc vote, by a simple majority of the justices for purely legislative questions, and by a super-majority for more constitutional issues.

Posted by: Derek Tokaz | Feb 2, 2017 11:33:05 AM

Speaking from a layman's perspective, I would question the candidate's stances on authoritarianism and fascism during the hearing phase. Some could be directed squarely at the current president, but some broader inquiry is recommended. The nominee purportedly formed a "Fascism Forever" club, sayeth the Daily Mail. I'd focus on that and make the Republicans own not just the dismantling of the Senate cloture rules, but the installation of fascism into our government.

TJC above argues that we need to get something in exchange for the loss of the filibuster. The filibuster is lost because all three branches of government are under the control of one party and they have no reason to retain it. Unless there is some leverage against the other party, there is no reason for the Republican legislature to maintain the cloture rule and it is false hope to believe in its continued existence. The ship has sailed, and your ticket is a piece of paper with the words "Cloture Rule" on it. It looks pretty.

Posted by: Nicholas Eckert | Feb 2, 2017 10:37:15 AM

The idea of not having the Senate take on a nomination later in the year in an election year was kind of put out there if not even in the same exact form by a few people. Then, there is the "Thurmond rule," which as they say is more liek what you call a guideline, if you take it seriously anyway.

This doesn't really amount to much as compared to it actually happening, with support of the full Senate, with a clear compromise pick that multiple Republicans said was an ideal candidate. Of course, they too perhaps "weren't serious," but if we want to take some at face value, why not all.

When is the "lame duck" period supposed to begin? The strict definition of that term is after the election. If we are going to push it back to before the election, why should Kennedy have been confirmed? If 1.5 terms of eight justices is "feasible," why not longer? We can change the rules as we like. I think it is a basic principle though that you elect a President for four years and early in the fourth year counts. The Senate was in control of Republicans. He didn't pick someone like Goodwin Liu though. Oh well.

The idea that if we have a President and Senate of different parties that no justice can be confirmed to me is rather bad policy. It might be where we are. Won't know it until we come again to a nomination that brings up the situation, including in the first year of a President's term.

Finally, "tit for tat" is a rather harsh way to describe evenhanded justice, so to speak. Plus, "stealing" is repeatedly justified by some sort of "principle." I use quotes advisedly. So, yes, the argument is it is illegitimate taking involving a very qualified compromise pick. Anyway, various senators (such as Gillibrand) appear to be focusing on ideology, a form of the old 'extraordinary circumstances' rule from the Gang of 14 days. Even Sen. Manchin says he likes the 60 vote rule, if just for Supreme Court justices. So, a sort of de facto supermajority rule is being promoted too. Best to use various arguments as we see by those who want to defend Republicans.

Posted by: Joe | Feb 2, 2017 6:52:59 AM

I don't see what is stupid about declining to filibuster because filibustering now will simply result in its elimination without doing any good. Whether the filibuster survives right now depends on a few squishy Republican senators like John McCain, who almost certainly are squishy on abolition not because they think doing so will preserve Senate tradition or that the Democrats would somehow reciprocate, but because they think that in the near term there are going to be many things on which they wish to oppose Trump, and it would be a hell of a lot more convenient for someone in McCain's position to oppose Trump by letting Democrats filibuster while standing by the sidelines (while grandstanding about preserving Senate tradition) than by actively voting against Trump. So if the filibuster survives I would think there may be things on the margins where someone like McCain is willing to lend a hand through passivity. On the other hand, these squishy Republicans are all very happy with the Gorsuch nomination; they are not going to preserve the filibuster if the issue comes up through this channel.

Bottom line, preserving the filibuster seems to have a marginal future advantage in helping moderate Republican senators oppose Trump on future issues where they are in fact opposed to Trump but have difficulty saying so loudly. Pushing the issue now seems to just get a bit of grandstanding and moral satisfaction in terms of payback for Garland but has no tangible advantage whatsoever. So why is it stupid to insist on the grandstanding and payback?

Posted by: TJC | Feb 2, 2017 4:36:13 AM

at the risk of suggesting that the 'principle' is anything but hypocrisy, it's worth footnoting that the 'principle' was even given a name -- the Thurmond Rule -- and Leahy (who made several positive references to it when in suited Democrats) suggested that it kicks in in the Spring of the last year. Biden said the principle should be invoked in the Summer. Schumer, in a speech to ACS that earned him a standing ovation, invoked the principle 18 months before the term ended. Republicans have haply joined in the hypocrisy as needed.

Posted by: anon | Feb 1, 2017 8:05:09 PM

I actually found the Republicans' stance on Garland somewhat appealing. A rule that vacancies should be filled, when practicable, by a president elected in an election where the question of who gets to fill that vacancy is before the voters, seems to me to help legitimate the composition of the Court and thereby legitimate what the Court does. Had Scalia died in 2013, leaving the seat open for the next President wouldn't have been feasible, but he didn't, and the Court has been able to delay deciding on various tough issues for the year it's taken for a successor to Obama to nominate someone to fill the vacancy. The arguments against the Republican position were basically formalist - constitutionally, the President is the President until he's not - so I would find it hypocritical if Democrats start advancing principles to excuse not confirming Gorsuch that make even less formalist sense, e.g. postulating that Presidents elected in the only way the Constitution provides for electing Presidents are less legitimate appointers of Supreme Court Justices if they don't pass some other test of electoral popularity that has no constitutional or legal significance whatsoever (I don't even think there's a statutory mechanism for certifying what the national popular vote is; you have to read the Cook Political Report to get the updated tallies).

In any case, what I think you'd find if Democrats started advancing these arguments seriously is that they wouldn't catch on. The argument I sketch has some appeal - we have a long tradition of treating lame-duck Presidents as non-actors for purposes of major policy moves, and that's what filling a vacancy on the Supreme Court is - or at least had enough appeal to enough people that the Republicans paid absolutely no political price for adhering to it, but I think it's going to be impossible to convince the people who voted for Trump and the Republican Senators who will confirm Gorsuch that the losers of the last elections should get their way, or even to convince many Democratic voters that they're entitled to a Justice that they can support. Our politics are too majoritarian to convince people after 200 years that judicial nominations are reserved for supermajorities. Nor do I think it will sell to anyone but a subset of the faithful to argue that, because he lost the national popular vote, Trump is President for most any purpose but appointing Supreme Court Justices. (Can he also not appoint a Secretary of State and Attorney General? At least there you could argue that there's a mechanism for acting officers in the case of vacancies. Why is the Supreme Court so special?)

Posted by: Asher Steinberg | Feb 1, 2017 5:36:36 PM

Well, one way to make SCOTUS appointments less contentious is judicial restraint on hot-button issues like abortion, etc...Oh well too late for that one. As things are now, the court is so politicized that every time a justice dies or retires, it is a hammer-blow shock.

With that in mind, rather than reduce the court to 8, I would suggest swelling its ranks drastically to something like 5000. Besides giving a shot in the arm to the black-robe garment industry, when you have so many members, the stakes for each nomination is much lower. I don't know how an en banc hearing with thousands of judges would work, but I can't think of any constitutional reason each case can't be heard by 4 randomly selected judges, effectively requiring a 3/4ths consensus and thus covering one of the rationales for reducing the size of the court. (For that matter, empaneling 4 judges can be done from the 9 we have now, and this might help soften ideological fault lines in the court.) The case load for each member would be so low that judges would likely serve simultaneously on other federal or even state benches, so the effect could be like random selection from the lower courts on a per-case basis.

A similar, less drastic, though maybe not as effective approach, is to make nominations on a fixed schedule and allow the size of the court to be variable. So the president nominates a justice at the beginning every even-numbered year, for example.

At least, that is the only solution I can think of that both ameliorates contentious confirmation battles and doesn't require a constitutional amendment.

Posted by: M. Rad. | Feb 1, 2017 4:45:38 PM

I think requiring super-majority support, while not supported in the text, is the de facto standard. The problem is that there are several Democrats who are up for re-election in 2018 in states that Trump won, and there is a decent chance that enough of them will break ranks to prevent a filibuster. Ultimately, this might not be the time to completely remove the filibuster, since the replacement of one conservative with another will hardly change the balance of the court. Forcing Republicans to eliminate it now might even make voters sympathetic to them. I think it might be more effective to hold this in their back pocket in case another opening arises during Trump's term, when Democrats can paint it as Republicans railroading a person through the process to change the balance of the court.

A couple other thoughts - Trump (with an assist to McConnell) made the selection of Scalia's replacement a major campaign issue. As a lawyer, I liked that this issue became a bigger consideration for voters (some polls suggested 20% of voters considered this the most important issue). However, the majority of these voters broke for Trump. So, it seems like it would be difficult to make the "stolen appointment" theory stick, because many voters had it in mind when they elected him.

Second, while the McConnell principle might have ignored many election-year appointments in history, he was hardly the first to propose it (see Biden in 1992 and Obama/Schumer in 2007). I have no doubt that if the situations of the political parties were switched, the same thing would have happened. I hope you don't harbor any illusions that Democrats would have behaved any differently. If anything, I recommend labelling it the Biden-McConnell principle.

Posted by: TJM | Feb 1, 2017 3:45:27 PM

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