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Thursday, April 06, 2017

More on the Leib-Lee Solution for SCOTUS

A couple of reactions to Ethan's piece:

1) The deal is better (and Garland a better nominee) for Republicans for the additional reason that Garland is 64 while Gosuch is 49.

2) Trump is and never has been a bipartisan dealmaker, so expecting him to be one  was beyond wishful thinking.He gets results by running roughshod from a position of power created by wealth (suing contractors or forcing contractors to sue him, knowing he can wait them out) or, as here, numerical partisan advantage. I am not suggesting there is anything wrong with that, only that this is his real M.O. He has no interest in doing anything else.

3) Trump could have gotten to the same place, even more easily, by following Eric Segall's proposal and not nominating anyone to fill the seat and asking Congress to reduce the Court to eight.

Posted by Howard Wasserman on April 6, 2017 at 02:11 PM in Constitutional thoughts, Howard Wasserman | Permalink


You say it's a good deal for Republicans and that Republicans benefit from the filibuster they destroyed (in a future Democrat Senate/White House world, I assume), but that the filibuster would have pushed Trump to nominate someone more consensual the next time around, and seem to be arguing that that's not a problem for Republicans because it isn't a problem for Trump because Trump doesn't care about the sorts of things an edgier nominee would do. I guess the trouble with this argument is that Trump isn't "Republicans," that Republicans do care about those things - about Roe, for example - and if they can swap Kennedy for Pryor or Sykes instead of the sort of person, like Roberts or Kennedy, who's likely to turn moderate in big cases, that's a really great deal for them and totally worth a difference in degree of how liberal Ginsburg or Breyer's replacement might be. The Court's liberals, unlike the Court's conservatives, are a bloc vote in the sorts of cases politicians watch already; I don't quite see what great difference it makes if Garland or someone like Pamela Karlan is on the Court, or at least they might not see the great difference. Perhaps there's a little doubt as to whether Garland would have overruled Heller or Citizens United, but I do struggle to imagine the world where Garland broke with his liberal colleagues and joined an opinion talking about the reliance interests those decisions have fostered. Someone like Karlan could attempt to move the Court's agenda leftward or offer all sorts of creative ideas Republicans wouldn't like, but like Thomas, how much influence would she really have without several like-minded colleagues to join her? If Republicans were really smart about the Court, and I think some of them are, they ought to have been far more scared of putting an extremely respected and well-liked liberal-ish former Roberts colleague on the Court than of a firebrand law professor who's spent much of her career rather viciously (if deservedly) slamming stuff that Kennedy's written about race and speech. She's just one example, but I don't think other super-liberal names that people have talked about in the past would be very effective influencers of their colleagues, if you'll pardon the dumb neologism, either. Garland's age is rather overrated as a factor in his favor for Republicans; an enormous amount of stuff can be done in twenty-plus years and I don't think politicians spend much time worrying about the Court in 2050.

Posted by: Asher Steinberg | Apr 7, 2017 3:51:27 PM


I am not arguing that the Constitution forbids filibustering. In fact, it explicitly provides that each house should make its own rules. I am, however, taking issue with the assertion that the Senate was "designed" to need to come to consensus for it to do anything. If it were designed that way, the Constitution would have required a supermajority for everything, as it did for conviction of impeachment and treaties.

Furthermore, for a very long time, almost two hundred years, the minority blocked the majority's will very, very infrequently, so we can't even argue that the filibuster is necessary for the Senate to perform its cooling off function. The Senate functioned fine without the minority having a veto over the majority's will.

It may be better to have the filibuster to stop bad legislation and nominations, but the Senate can certainly do its job without it, and the Senate was not specifically designed to have a filibuster.

Posted by: biff | Apr 7, 2017 3:26:36 PM

"I thought we offered one reason why the even number was better institutionally than an odd number. But it would also have the effect of taking away SCOTUS's ability to overturn as many state and circuit courts. That probably is a net good (for Republicans who like federalism and for other conservatives who think the Court is too powerful) -- but it would take more than an op-ed to show why."

Yes, I saw that, but that wasn't exactly my question. Rather, if Trump and Congress were to take the (somewhat extraordinary) step of adding a tenth seat, what would stop them from adding an eleventh seat? It seems like the rhetoric for an odd-numbered court would be easy enough, so if you are going to add one you may as well add two. Also, in the eyes of conservatives, Obama just spent the last 8 years packing lower courts with his nominees, so the possibility of more deadlocked SCOTUS decisions that leave the lower court decisions in place would probably not be perceived as a net win. In addition, Republicans view the Gorsuch nomination as effectively replacing Scalia. Sure, Garland may be older and more moderate, but Republicans would consider it as diluting a once solid conservative vote on the court.

Finally, Democrats already demonstrated that they were willing to get rid of the filibuster, and it was probably only left in place for SCOTUS because there was no SCOTUS nomination pending at the time. I doubt that anyone reasonably believes that Democrats were interested in keeping the filibuster; several Democrat senators, including Tim Kaine said during the campaign (when everyone assumed Clinton would win) that they would eliminate it if Republicans attempted it for one of her picks. Republicans probably thought that it would be better to eliminate the filibuster and take advantage rather than wait for a time when Democrats could do it to them. To be honest, I can't say I blame them for thinking this way.

I agree with TJC that Republicans would probably view adding a tenth seat (by itself) as a losing deal.

Posted by: TJM | Apr 7, 2017 3:15:20 PM

(so the prediction game is complete: we will have a nine person bench before the end of the term & he will probably have some deciding role before its end, including perhaps on cert)

Anyway, I'm not optimistic on these "solutions" but guess I appreciate the conversation. As to "moderating," I look back to the Reagan Administration (and probably beyond) and wonder how the filibuster mechanism being there really changed the dynamics of the picks to SCOTUS. I really see little net effect here.

Picks were placed for a range of reasons (including by Reagan and Obama, at least, in large part to put "firsts" on the Court). But, some "moderating tendency" is not overly apparent to me regarding the sixty vote threshold. It's somewhat hard to tell -- in these debates numbers are tossed around in various ways -- but probably had some influence regarding lower court picks. OTOH, perhaps blue slips specifically played an important role there. I read at ACSBlog that they still are a thing (for now, at least).

Still, even there, I wonder. Full disclosure: I was gung ho in the early years of the Bush Administration. Still, net, don't know. Can cite specific victims like conservative martyr Miguel Estrada but the so-called Gang of 14 in the end led to key conservative nominees being put on the bench. From a left leaning perspective, also unclear the value of all of this given Republicans similarly blocked Obama nominees there & "extraordinary circumstances" apparently included "too many seats in the D.C. Circuit" and "even though both home senators, including a Republican are okay with him, still think he's too extreme."

[Yes, that last part is just a tad snarky. On the merits, I think today was the completion of a bad violation of a sound norm. So, grant me a pass.]

Net, how "moderating" is the filibuster? I also can imagine various things, especially in a closely divided Senate, can still be used to moderate appointments if enough senators somewhere in the middle (from both parties) actually was serious about it. Oh well.

Posted by: Joe | Apr 7, 2017 12:51:22 PM

Ethan, I'm not getting why Garland being more conservative than a future Democratic president's pick is relevant to the discussion. Under the current scenario, if, say, AMK retires in 2021 with a Democratic president, the court flips to Democratic majority 5-4. Under your scenario, the court goes from evenly divided to to Democratic majority 6-4. Now, it is true that under your scenario the marginal justice in the Democratic majority is Garland, who is the necessary sixth vote, in default of which it is a 5-5 split, while in the 2021-Democratic-majority scenario the marginal justice is Breyer. But all of the work is being done by even-numbered court versus odd-numbered court, not Justice Garland vs. Justice Karlan. And if the argument really hinges on even-numbered court versus odd-numbered court, then all I can say is that I don't know any conservatives who are eager to have an evenly-divided court right now, even as a behind-the-veil-of-ignorance matter of starting effective 2021, let alone starting effective right now (when they would be giving up a certain 5-4 majority), while I have seen quite a lot of liberals all of a sudden thinking a permanent 4-4 split court might be a worthwhile idea.

Posted by: TJC | Apr 7, 2017 12:30:07 PM

You take the next one as it comes. Keeping the filibuster would have pushed Trump to pick someone more consensual. With it gone, there is no moderating tendency.

"Almost all" did not filibuster Alito. 24 by my count. And my best guess is that they wouldn't have done it if they had the votes to be successful.

Do you really expect the Constitution to provide rules for the internal operation of all of the Senate's business? Committee structure too? Debating rules? Remember it wasn't meant to be a prolix legal code. To the extent we want to be originalist about it, it is hard to see bicameralism and presentment as "majoritarian" -- and the Senate especially is built to be disproportionate and to be a cooling saucer. The filibuster helped that. No more.

Posted by: Ethan Leib | Apr 7, 2017 12:00:26 PM

Under this plan, what happens when there is another vacancy for Trump to fill and Dems filibuster?

It is imply not true that Dems are filibustering only because of Garland. Almost all voted to filibuster Alito, and there was no Garland issue then.

Second, why is this nuking a threat to the country and the Senate, while the previous nuking for hundreds of judgeships and officeholders wasn't?
The country seems to be going along just fine. Most people can't even tell that there was a nuclear attack a few years ago.

Third, the Senate was simply not designed to need a super-majority to get things done. If that was the intended situation, the Constitution could have said that, as it does for ratification of treaties.
And minority parties almost never abused Senate debate rules to block even legislation until recently.

Posted by: biff | Apr 7, 2017 11:32:02 AM

It would have been a good deal for Republicans. Not only because Gorsuch is younger but because Garland is more conservative than any Clinton/Booker/Warren nominee would be. That was why it might have even worked, convincing Trump this was a net win for everyone. Republicans benefit from the filibuster that they just destroyed. No one can reasonably believe Trump is an originalist or cares about most of the issues judicial conservative care about (textualism, skepticism about abortion rights and gay rights, "colorblindness," etc.).

I thought we offered one reason why the even number was better institutionally than an odd number. But it would also have the effect of taking away SCOTUS's ability to overturn as many state and circuit courts. That probably is a net good (for Republicans who like federalism and for other conservatives who think the Court is too powerful) -- but it would take more than an op-ed to show why.

Posted by: Ethan Leib | Apr 7, 2017 11:26:51 AM

Too late now, but I think TJM's idea of 11 seats, with a conservative majority, is actually the only deal that might possibly have worked to avoid nuking. Yes, compared to a baseline of an evenly-divided court, Garland and Gorsuch is a better deal for Republians because Garland is older (and by most accounts less liberal than Gorsuch is conservative). Compared to the far more relevant baseline of what the Republicans could get if they did not cooperate, the Lieb-Lee deal is an obvious loser to the Republican side. If you are not offering the other side a plausible benefit relative to that baseline (and, no, high-minded appeals to "the institutional soul of the Senate" don't count, when nobody in the process thinks the other side believes it), they are not going to take the deal.

Posted by: TJC | Apr 6, 2017 7:25:52 PM


Thank you for posting. I would have liked to have commented on the post at US News or on Ethan's Prawfs post, but the comments appear to be closed/unavailable on both.

If SCOTUS were expanded to 10, I am curious to know why he thinks that the President wouldn't go a step further and ask Congress to expand SCOTUS to 11 seats, appointing Garland, Gorsuch and still another (likely conservative) justice.

Posted by: TJM | Apr 6, 2017 4:46:25 PM

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