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Monday, December 27, 2021

A different Court contingency

Orin Kerr offers a Twitter thread on the contingency of how we got to the current Supreme Court from Obama's nomination of Garland in early 2016--how we went from Garland as Scalia's replacement to the expectation of Hillary Clinton replacing Scalia, Ginsburg, and maybe Kennedy and Breyer to create a Court on which Kagan is the median Justice to what we now have. Orin writes: "Not only was there good reason in 2016 to think the future Court was going to be left of center, there was good reason to think it would be really solidly so. . . . Can you imagine being on the left and having that expectation of the future in 2016 -- and then seeing the center of the Court instead shift hard to the right instead, from AMK to Roberts, and then Robert to -- who -- Gorsuch? Barrett? Kavanaugh? That's a shock."

I have thought much the same--it is the main reason I was so broken up on November 9, 2016. While I did not foresee RBG dying, it was obvious what would happen with the Court over the next four years. As a citizen and political liberal, I watched the prospect of a left-leaning Court--for the first time in my conscious lifetime, Fortas having resigned when I was less than a year old--evaporate.

But consider another contingency that is as interesting. Imagine Clinton wins but the Senate remains in Republican hands, which I saw as a likely outcome as of early October 2016. McConnell and Grassley--having tasted success and incurred no costs (in fact, having been rewarded) for blocking Garland--would not have allowed Clinton to appoint anyone to the Court.* So we would have had two, and probably four, more years of an evenly divided Court--a genuine and sufficiently long experiment in the workability of Eric Segall's proposed permanent evenly divided Court.

[*] Grassley is making noise about the same steps should the Republicans gain control of the Senate next years, based on the "principle" that a Senate of one party does not confirm Justices for a President of the other party.

Posted by Howard Wasserman on December 27, 2021 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Joe, oh, I doubt it too, although maybe more because someone unreliable like Manchin defects as opposed to Ds uniformly decide keeping the seat open is a bad idea. But at least you might end up with someone less abysmal than Gorsuch, which isn't saying much.

Kennedy I suppose still retires if TP is Prez, even though Ds control the Senate. Or maybe Kennedy tries to wait it out for a favorable Senate, I dunno.

The most interesting thing is what happens with RBG in 2020. If Ds still have the Senate majority then, I think no question they keep the seat open at least until after the election. Someone like Manchin could probably even be convinced to go along in that scenario.

As to whether Rs would stonewall a theoretical HRC Prez for 2 or even 4 years, I think "naïve" doesn't even come close to describing it. You underestimate R obstructionism at your own peril. That's based on, well, roughly 100% of the available empirical evidence. Anything else is pure wishful thinking.

On that same note, "how the public would have responded to five years of blocking." I'll keep saying it until I'm blue (no pun!) in the face. The actual, general public—i.e., not people who follow Twitter and blogs or keep abreast of WaPo and the NYT—has literally no clue, or only the dimmest idea, of what SCOTUS is or does. They don't know any of the current (or former) Justices or what the size of the Court has been over time. So the likelihood of them getting upset over HRC being denied a nomination is basically nonexistent. They wouldn't even notice in the first place. I'm not being condescending, just stating the facts.

Posted by: kotodama | Dec 27, 2021 4:29:46 PM

"In that case, do the Ds have the intestinal fortitude to keep the Scalia seat open for 2 or potentially 4 years?"

I doubt it.

I really question even the Republicans -- who at best would have a smallish majority with a few senators who are not totally in the bag -- would do it. You can make stuff up short term like in 2016, but at some point messing with the Supreme Court is a sort of third rail.

I realize to many that comes off as naive. She might have had to toss them Garland over some younger person, maybe.

Posted by: Joe | Dec 27, 2021 3:48:51 PM

I guess the "Clinton wins, but Rs keep the Senate" hypothetical is more sexy, but, even as a counterfactual, it doesn't seem to line up with reality (or "reality") all that much.

The reality is, Ds actually made Senate gains in 2016; they picked up two seats. And if you imagine that HRC won, it's hard to conceive how that doesn't lead to a corresponding bigger success in the Senate. For example, PA and WI were two critical states that she lost. If she wins those instead—as would be one way to help support the hypothetical—it seems almost a given that Ds capture the relevant Senate seats too. (So wins for Katie McGinty and Russ Feingold, respectively.)

Another counterfactual to ponder—and one closer to actual reality—is the Ds achieve a Senate majority, but TP still wins the EC. In that case, do the Ds have the intestinal fortitude to keep the Scalia seat open for 2 or potentially 4 years?

Posted by: kotodama | Dec 27, 2021 3:31:59 PM

The blocking of Garland had a modicum of logic (not that I bought it).

It would have been ... well I guess interesting is one way to phrase it ... how the public would have responded to five years of blocking.

Would a re-election of Clinton matter? If you had a Democratic POTUS, you might have that little bit of a push (divided government and all that) needed to have the Republicans win one more seat in 2020.

So, would we have a 7 person Court? Shades of the Andrew Johnson Administration.

Posted by: Joe | Dec 27, 2021 11:48:43 AM

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