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Sunday, September 20, 2020

Structural principles and SCOTUS appointments (Updated Again)

Two preliminary points.

First, for Ruth Bader Ginsburg, may the memory of the righteous  be a blessing (zekher tzadik livrakha). It is said that a tzadik (a righteous person, particularly one who is humble in life and whose righteousness becomes fully known only after her death) dies on Rosh Hashanah. I write this on the yahrzeit (anniversary of death) of my father-in-law, a truly righteous person.

Second, I expect Trump to nominate and the Senate to confirm Amy Coney Barrett (Seventh Circuit),* although it is not clear whether the confirmation will be prior to or following the election. Ilya Somin's proposal (both sides stand down--no confirmation until after January 20 in exchange for a Democratic promise not to expand the Court) is a brilliant compromise that he recognizes is unlikely to happen. And McConnell, Lindsey Graham, et al., do not care about being accused of hypocrisy in any shift in their views of confirming Justices during an election year.

[*] The alternative name appears to be Barbara Lagoa, a former Justice on the Supreme Court of Florida and recent appointee to the 11th Circuit; Lagoa is Cuban-American and the appointment might be an attempt to shore-up support among the Cuban-American community in Florida. Lagoa was in the majority holding that Florida did not violate the 14th or 24th Amendments in requiring ex-felons to repay unknown fees before their voting rights could be restored.

After the jump, I want to think about the "shift" in these positions.

In an early publication, I argue that the Constitution's structural questions can be understood and answered by resort to one, some, or all of three competing principles--democracy, separation of powers, and partisanship. The principles may conflict. Or they may undermine original structures--the system was supposed to be based on separation of powers because political parties were unknown and conceptions of democracy limited. Or emphasis on one principle may lead to a different conclusion than emphasis on another principle. Any conclusion is presumptively constitutionally valid; the question is choosing among several valid options, depending on choice of principle.

In 2016, McConnell could have framed the refusal to hold hearings and a vote on Merrick Garland's nomination in separation-of-powers terms. The Senate is required to provide "advice and consent" and the Senate establishes its rules of proceeding. It thus can exercise that advice-and-consent power through whatever rules of proceeding the majority of the body sees fit, including by withholding advice or consent through inaction. This would have gone against historical norms and practices. But it would have fit the model of an independent Senate doing what it believes best. It also would have preserved separation of powers as to the executive--not suggesting that the President's constitutional power runs out earlier than the four years enumerated in the Constitution.

Instead, McConnell framed his "rule" of no election-year confirmations in terms of democracy--the People should have a say in who makes this appointment. And several Senators, notably Graham in fall 2018, have affirmed the "rule" in those terms and on that principle. This framing is problematic on its own terms. The People had a say when they re-elected President Obama in 2012 with the understanding that he would be President, and exercise executive power, for four years. On this understanding, democracy was forward-looking to what the coming popular majority might do, not backward-looking to what the prior, still-controlling popular majority had done. In any event, that rule, based on that democratic principle, is absolute: No confirmation during the final year of a presidency.

Here is McConnell's statement on Ginsburg's death and the new vacancy:

In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.

By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.

McConnell has shifted the controlling principle from democracy to partisanship (or partisanship reframing democracy). The right of the coming majority to pick the new President and influence the new justice yields to unified party control of the Senate and White House. A Senate controlled by one party does not confirm nominees of a President of another party in an election year. But the same restriction does not apply when the Senate and President are of the same party--party control is more important than forward-looking democracy. One can agree or disagree with McConnell's conclusion or plan, but it does reflect proper application of that principle. Alternatively, the partisan outcome of backward-looking democracy reaffirming unified party control is more important than unknown forward-looking democracy. Either way, this represents the explicit triumph of the Pildes/Levinson thesis that we have a system of separation of parties rather than powers.

McConnell also shifts the segment of the People that matters. The segment of the public that elected 1/3 of the Senate is more democratically important than the segment who re-elected Obama in 2012 or who will decide the presidency in November. This produces a strange vision of democracy, in which the popular will of a small sub-part prevails over the will of the whole.*

[*] Compare statutory presidential succession, the issue on which I described these principles. Congress put the Speaker and President Pro Tem at the top in the name of democracy. The line should pass to officers elected by some popular segment and placed in their positions by fellow officers elected by different popular segments, thus representing some national majority. But critics of legislative succession justify their conclusion in democratic terms by resort to a different majority--cabinet officials enjoy "apostolic democratic legitimacy (Akhil Amar and Vik Amar coined the term) by virtue of their appointment by, and in service of, a nationally elected officer.

McConnell's conclusion--OK not to vote on Garland, OK to confirm Barrett)--represents a plausible argument from these competing principles. But that is neither the rule nor the principle on which he relied four years ago. Any charge of hypocrisy (which, again, McConnell does not care about) derives not from the change in conclusion but from the change in controlling principle to justify divergent conclusions.

Update: For the first time, President Trump said something I agree with: McConnell did not want to consider Garland, but the current situation is difference because Republicans now have the Senate and can do what they want. Yes. Whether framed as separation of powers or partisanship, there is a distinction and Republicans can run with that distinction. But, again, the problem, and the hypocrisy charge, comes from framing the Garland move as a matter of democracy, no doubt out of a felt need for a "neutral principle." Trump feels no such need.

Posted by Howard Wasserman on September 20, 2020 at 12:10 PM in Howard Wasserman, Law and Politics | Permalink


Regarding the 1/3 who elected the senate being more important that those who re-elected the president, there is some argument to be made with regards to the Supreme Court.

The senate must consent to Supreme Court appointment. Therefore, when the people flip the senate from the party controlling the White House to the out-of-power party, that flip should be considered important with regards to the Senate's actual responsibilities regarding giving its consent to presidential actions.

Regarding the Senate not considering Garland's nomination, there is precedent for the Senate simply to refuse to consider or postpone indefinitely a vote on nominees.

Posted by: thegreatdisappointment | Sep 20, 2020 12:57:29 PM

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