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Sunday, July 22, 2018

I am shocked, shocked to find that Court-packing is going on in here

I do not want Brett Kavanaugh on the Supreme Court, just as I did not want Neil Gorsuch on the Supreme Court. But some of the complaining from my ideological compatriots is embarrassing. 

It starts with Charles Schumer's suggestion that Trump should have nominated Merrick Garland, which Sen. Sheldon Whitehouse endorsed as an example of a "really legitimate nominee," in contrast with whoever Trump is inclined to nominate. Now Dahlia Lithwick cannot believe that Kavanaugh believes that it is OK to pack the Supreme Court with justices who will not turn out to be ideological disappointments, as Warren, Souter, and O'Connor were. (Poor Justice Brennan has been forgotten on this list). She writes of Kavanaugh that "now the young lawyer who predicted that where there was a will, there was a way to pack the courts, has himself gone on to become the 'predictable' nominee who won’t let the party be Soutered or O’Connored again."

Well, yes. Of course Presidents can pack the Court with Justices they believe are ideologically simpatico and will remain so. FDR spent 12 years doing that. And imagine that Hillary Clinton had won and gotten a Democratic Senate, then renominated Garland and been handed Kennedy's retirement. I doubt Lithwick and other liberals would complain that Clinton had nominated Patricia Millett or Goodwin Liu, who would pack the Court with a six-Justice liberal majority inclined to protect and expand constitutional protection for abortion rights, racial minorities, etc. And liberals would be running around to ensure that either nominee would be predictable in their decisionmaking on key constitutional issues and that Democrats would not be "Whited" or "Frankfurtered" on major issues.

It is time to change the discussion around SCOTUS appointments by rethinking several things:

1) There are not going to be any more Warrens or Souters and we really need to stop talking about the possibility. Both appointments are, in political terms, ancient history. Republicans care too much about judicial appointments and the Federalist Society (which was in its infancy when Souter was appointed) is the incubator through which most conservative lawyers and judges come up; both guarantee that serious nominees will have a clear and obvious legal and constitutional vision. The polarization in the political parties now maps onto judges likely to be serious candidates under those parties. Republicans like David Souter or William Brennan do not exist anymore and neither to Democrats like Felix Frankfurter. As Mike Dorf puts it, a "mainstream Republican appointee and a mainstream Democratic appointee are ideologically quite distant." So a Republican President will appoint consistent judicial conservatives. As I Democrat, I hope the next Democratic President will appoint consistent judicial liberals.

2) Because of that polarization, new legal issues or regimes are unlikely to arise that shake-up the constitutional order or split constitutional allies. FDR packed Court with New Dealers because that is what mattered to him. In the late '40s and early '50s, the legal landscape shifted to a focus on civil liberties and individual rights. FDR appointees such as Black, Douglas, and Murphy went one way, Frankfurter another. I cannot envision any new, unthought-of issues that are going to become salient that will not have an obvious preexisting Federalist/Non-Federalist (or Democratic/Republican) alignment. No high-profile constitutional issues are suddenly going to unite Kagan and Kavanaugh.

3) Republicans are better at this and, polls from 2016 suggest, care more about it. But why is that? Perhaps because it is easier to create fervor to fight against something than to fight for it. The Federalist Society formed as a response to the perceived excesses of the Warren Court and liberal constitutionalism and the need to fight back against it. Republicans harvested support from religious activists over the need to push back against Roe and doctrines limiting religion in schools (and, soon, other places in society). There is a fear of attack and loss; control of the courts is essential to defending against that attack. By contrast, liberals view liberal constitutionalism as a failure, a Hollow Hope that did not and cannot achieve social change, at least not alone. But disappointment at not achieving full social change through the courts seems to have metastasized into apathy about the courts and the need to elect Democrats to the Senate and White House so they aggressively fill judicial vacancies.*

4) Much is being made of Trump filling vacancies at a record pace in the first two years of an Administration. This could represent GOP concern (represented by the roles of Leonard Leo, Don McGahn, and Senate Republicans more than Trump himself) in contrast to the apathy of Obama (who had a Senate majority for six years) and Bill Clinton (who had a Senate majority for two years). But the rules of Senate engagement are different than they were even four years ago. So we can wonder what the next Dem President with a Senate majority will try to do.

5) That Republicans are better at this should not be grounds for liberals and Democrats to say stupid things, such as suggesting that a Republican President appoint a Democrat to the Court or complaining that a Republican President is packing the Courts. I would hope that President Hillary Clinton would have laughed at a suggestion from Mitch McConnell. And I would hope that liberal journalists would laugh if someone in the National Review complained about Clinton packing the courts.

Posted by Howard Wasserman on July 22, 2018 at 04:23 PM in Howard Wasserman, Law and Politics | Permalink


Correction: Sorry, I meant to say I have no reason to believe the Democrats would NOT have blocked Alito if they'd had a majority.

-- posted from Helsinki

Posted by: Joe Cynic | Jul 25, 2018 4:20:34 PM

I respectfully question the premise in the comment from Joe (not as cynical as me? :-)) that the degree of intensity is significantly higher because of the Garland/Trump/etc. current situation. I submit that that is a convenient excuse, but had this been a "normal" scenario, but still with a Kennedy "swing" seat at stake, it'd be 98% as crazy. That is, suppose Scalia were still alive, and Kennedy retired now under Pres. Kasich. It'd be the same story.

Compare the Alito nomination. Recall that almost all of the Democrats voted against him, and most even filibustered. Alito received only 4 Democratic votes, while 40 voted against (and 25 had filibustered). He was confirmed only because the GOP then had a big enough Senate majority to not need crossovers on the actual vote, but needed only enough to clear the filibuster. But I have no reason to believe that if the Democrats had a majority then, they would have blocked Alito.

So what is new? And that's not even getting into all the decades of downward spiral marked by Bork, the filibustering and blocking several Bush 43 appellate nominees, and so on. We all know those stories enough to know there are no clean hands on either side, and that calling it all a "GOP crusade" takes turning a blind eye to a whole lot of escalations on the other side. One can easily make just as good, or better, an argument that the GOP finally caught up with decades of being behind at this game.

Posted by: Joe Cynic | Jul 25, 2018 12:57:01 PM

An opinion from a non-lawyer reader of your blog.

Yes, Hillary Clinton would have appointed liberals to the court. Well and decent since they are more representative of the views of a majority of Americans. According to every poll I've seen,a majority (65-70%) of voters do not want Roe to be overturned.

If the Republicans were still a "normal", fact-based party, I would have no problem with their appointments. But they have been hijacked by hyper-religious individuals with no respect for the separation of church and state or the rule of law.


Posted by: SAR | Jul 24, 2018 11:12:25 AM

Re: “Of course Presidents can pack the Court with Justices they believe are ideologically simpatico and will remain so. FDR spent 12 years doing that.”

FDR did not spend “12 years doing that,” as his first appointment was in 1937 and his last in 1943. Moreover, the Court was beginning to turn away from its laissez-faire economic ideology, hence the so-called Constitutional Revolution of 1937.

One might also note that there was fairly widespread dissatisfaction with the Court’s regnant ideological orientation well before FDR took office, as would-be reformers, “including on occasion jurists like Brandeis and Stone, had decried [a] meddlesome judicial activism” on behalf of ideologically dogmatic and intransigent laissez-faire economic ideology, “beseeching the black-robed unelected justices to defer to the will of the democratically elected legislatures. But they pleaded in vain. In the 1920s alone, no fewer than nineteen socioeconomic statutes had fallen to the judicial ax, including laws that prohibited child labor and defined minimum wages for women workers.”

The Court was constitutionally (pun intended) averse to New Deal legislation, practicing a predictable form of judicial nullification, hence “more than one hundred bills were introduced in Congress in 1936 to redefine the balance of power between the legislative and judicial branches of government. As the historian David M. Kennedy writes, “Franklin Roosevelt’s aggravation with judicial obstruction was neither unwarranted nor singular. Nor was it precipitate”

Posted by: Patrick S. O'Donnell | Jul 23, 2018 4:41:17 PM


If it took a supermajority of the Court to overturn a statute as unconstitutional, but only a typical legislative majority to pass the statute, you'd still be able to "change" the Constitution through a simple majority--a simple majority of legislators...

Yeah, yeah, filibuster--yeah, yeah, bicameral federal legislature--yeah, yeah, Presidential veto. Not that any of those so-called protections have served served all that well to stop objectively unconstitutional legislation in the past, but what about state statutes? You want Nebraska's unicameral legislature to have the power to interpret the Constitution subject only to the potential veto of a SCOTUS supermajority?

God help us all.

Posted by: Anon Again | Jul 23, 2018 3:42:44 PM

I'm pleased to see Martin Wishnatsky suggest that it require a Supreme Court supermajority to overturn federal or state legislation on constitutional grounds.

I see the Supreme Court's majority to declare unconstitutional a duly passed law on a 5-4 majority as one of the most dangerous features of the US constitutional structure. Is it not a contradiction that it requires an extraordinary consensus to amend the Constitution officially (2/3rds of Congress + 3/4ths of the states, but a bare, 5-4 majority to amend the Constitution via the Supreme Court?

Since the Supreme Court's majority is nearly random and determined by oddities of when mortality strikes, who "Souters," and weird stuff like Carter getting 0 nominees in four years while Nixon got four, the Supreme Court majority is randomly determined and thus no institution to vest such enormous power in.

I'm fine with a 5-4 Supreme Court majority getting to decide matters on statute, but not on the Constitution.

Posted by: Samuel | Jul 23, 2018 3:14:14 PM

No, see, this is exactly where liberals and conservatives diverge on SCOTUS tactics.

Wasserman thinks Schumer and Lithwick are silly to advance these purely rhetorical and unmoored positions, while Republicans were happy to jump on board McConnell's asinine "We can't have a SCOTUS nominee within 9 (10?, 12?, 18?, 48?) months of an election!" argument. Indeed, they were so happy to jump on board that it actually @#$!% worked.

If one side has no concern for propriety and will advance whatever tactic is available, while the other side is concerned that journalists might laugh at them for "say[ing] stupid things," who do you think will end up winning?

This has become a purely political and zero sum (between the parties--probably negative sum for the nation as a whole) game. Liberals need to do absolutely anything that works. Republicans have proven that tactics that are objectively stupid, unjustified, and laughable work just fine. Don't like that situation? Then we better find a way to change the underlying game, but that will probably require achieving both an electoral and Court majority first.

Posted by: Anon Again | Jul 23, 2018 11:10:36 AM

Pretty much after Bork, Democrats have no right ever to complain about Supreme Court nomination tactics ever again (and I say that as a self-aware Democrat--a dying breed these days).

Posted by: YesterdayIKilledAMammoth | Jul 23, 2018 9:37:19 AM

[sorry for editing mistakes; posted that too soon & if possible, it can be deleted]

Posted by: Joe | Jul 22, 2018 5:25:54 PM

There are various aspects of the situation now that wouldn't have been in place if Clinton (stolen seat) or even another Republican (the same taint of the person doing the nominating, particularly if the Dems won the Senate in that scenario by split ticket voting) was involved here.

So, it is somewhat talking past Chuck Schumer and company regarding who should be nominated here. The situation for some is far from typical. Obviously, for those who don't accept certain premises, their reaction is going to be different.

Short term, #1 might be true, but who the heck knows what is going to happen in the 2020s? Who is going to be the next Republican president? What sort of views will he or she have? What will the political situation be at the time? What if the executive and legislature is split? If there was two nominees in a short period of time, why wouldn't one be a Souter? Warren was nominated in large part for his role in electing Ike. Why cannot something like that occur again? Who is to know?

As to legal issues, it seems fairly lacking in imagination to think nothing big is going to happen ten to twenty years from now that might split the conservatives on the Supreme Court. Likewise, only some "liberals view liberal constitutionalism as a failure" and whatever "apathy" is already starting to drop away. There is a growing passion in which candidates are expected to do big things & the courts (especially after Garland/Trump) make the base in particular angry.

Once the Democrats regained control of the Senate during the Bush years, they put more pressure on Bush to compromise on his picks. For instance, he nominated someone the Dems wanted in one circuit in return for a pick that was held up. While they were of power, they used the filibuster to delay and as outs tend to do, criticized "radical" picks. Republicans railed against radical Clinton and Obama picks too. Other than the word "pack," the general idea was promoted.

Anyway, maybe Dems need to get "better at this," but some method (such as advisory panels) should be set up to yes help prevent simply "packing" the courts with ideologues. A term limit that allows for steady replacement, one that stops Garland-like tactics, helps that end too. Finally, it is not simply appointing a "Democrat" or a "Republican," but the depth of the ideology. Kennedy over Bork mattered. Breyer over various stronger left leaning types (including on business and certain criminal matters) would too.

Posted by: Joe | Jul 22, 2018 5:20:16 PM

The politicization of the Supreme Court could be stymied by a rule that requires a 3/4 vote (7 of 9 justices) to overturn a state or federal law.

Such a rule would preserve judicial review but only in cases where a supermajority, that would ordinarily be composed of nominees of both parties, concurred.

Constitutional amendments require 3/4 of the states to concur. The same percentage should apply to the Supreme Court when it invents constitutional rights to reverse legislation that has been democratically adopted.

Posted by: Martin Wishnatsky | Jul 22, 2018 5:12:57 PM

Your second link doesn't work, I was wondering if there's an endnote missing from the post (your (3) ends with an asterisk that doesn't lead anywhere), and is "schocked, schocked" a pun of some kind (perhaps for Aaron Schock?), a phonetic rendering of Claude Rains's accent in Casablanca, or a typo?

I'm 99.99% sure that Kavanaugh would have joined Kagan's opinion in Lucia this term, but maybe the constitutionality of ALJ appointment isn't a high-profile issue.

Posted by: Asher | Jul 22, 2018 4:44:09 PM

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