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Trump and McConnell, Beware
I first met Ruth Bader Ginsburg in the winter of 1978 when we were both fellows at the Center for Advanced Studies in the Behavioral Sciences at Stanford. Our interactions were always cordial. From the first time we talked, it was clear that she was a passionate advocate first, and a detached academic second. She was always immersed in filing certiorari petitions at the Supreme Court in connection with the hugely successful Women’s Rights Project, which she ran at the American Civil Liberties Union from 1972 until she was appointed to the Court of Appeals for the District of Columbia in 1980.
Ginsburg had the rare quality of being both passionate and rigorous in her work, and she displayed those same traits of grit and excellence at every stage of her career. Moreover, her excellence as a lawyer was not confined to the women’s rights issues that brought her fame. She also displayed an impressive expertise on the many procedural, jurisdictional, and constitutional issues that form a huge part of the high court’s docket. It was surely possible to disagree with her on the merits of any given case, as I often did. But it was not possible to dispute the brilliance, knowledge, and determination that she brought to her lifetime’s work.
Ginsburg was nominated and confirmed to the United States Supreme Court in 1993 by a 96-3 vote, in a relative period of peace between the huge confirmation battles of Judge Robert Bork and Justice Clarence Thomas, and those of Justice Neil Gorsuch and Justice Brett Kavanaugh. The most bitter fights have been over Republican nominees, a pattern that promises to continue with the next nominee, whom President Trump has stated, surely incorrectly, that he has “an obligation” (as opposed to an option) to nominate. He has already announced it will be “a very brilliant woman.” The thought that the immediate struggle would be put off until after the election was dismissed by Senate Majority Leader Mitch McConnell’s immediate announcement that he will try to persuade the Senate to confirm a nominee.
The obvious Democratic rejoinder is that McConnell himself held up the nomination of Judge Merrick Garland on the stated ground that the people should have a chance to speak in the presidential election before his nomination proceeded. That position, made when Barack Obama was president, was a fig leaf for a far more partisan calculation. McConnell thought that if Hilary Clinton were elected to the presidency, she would either renominate Garland or appoint some other nominee who, from his point of view, would be just as undesirable, but probably not that much worse. Obama had acted wisely in choosing Garland because he was an older judge from the more conservative side of the Democratic Party, someone who furthermore had impeccable credentials for the Supreme Court. But Obama’s calculated gamble failed because of the partisan wall Garland faced in the confirmation process. The only issues that matter at confirmation hearings seem to be abortion and reproductive rights; corporate speech and campaign finances; matters of race, gender, and sexual orientation; and issues relating to voting rights. On all of these critical topics, Garland would likely have sided with his Democratic brethren, clearly motivating McConnell to fight hard to retain that crucial fifth vote.
However, that strategy never quite panned out in practice, as defections from the conservative five are more frequent than those from the liberal four: think of Chief Justice Roberts’s critical vote to first sustain the Affordable Care Act in 2012 in NFIB v. Sebelius, and then his 2015 opinion in King v. Burwell, allowing enrollees in federal plans under the ACA to receive tax deductions; of Justice Anthony Kennedy’s 2015 decision in Obergefell v. Hodges, giving constitutional protection for same-sex marriage; and Justice Gorsuch’s 2020 opinion (joined by the chief justice) in Bostock v. Clayton County holding that Title VII of the 1964 Civil Rights Act protects both gay and transgender employees.
Nonetheless, Democrats still fume that McConnell stole their seat: but “stole” belongs in quotation marks. McConnell’s refusal to give Garland a hearing or vote lay within the sole discretion of the Senate. The manifest snub, given its preordained outcome, was a blessing in disguise that spared the nation the huge and ugly struggle that would mar the Kavanaugh confirmation hearings. But strategically, 2020 is not a rerun of 2016, as the Republicans control both the presidency and the Senate, and therefore do not want a presidential election to upset their appointment prospects.
What happens next is anyone’s guess. Trump is likely to pick a nominee who will not alienate swing Republican senators like Susan Collins and Lisa Murkowski, who both have already announced that they want to postpone the vote so that it can be made by the person who wins the 2020 election. On balance, I think that they are correct, and the issue might become moot if other senators speak up, perhaps forcing Trump and McConnell to back down on an immediate vote. Nor is this necessarily a disaster for the Republicans, for as the conservative Richard Viguerie has urged, making this an election issue forces Biden to publish his own list of nominees, and gives legitimacy to any nominee Trump selects if he is victorious. As of this writing, both Trump and McConnell are all in. Both recognize that if they are to have any chance, Trump will have to nominate a moderate, not a hard-line, conservative woman.
If the nomination process plays through, I suspect it will galvanize Trump’s outraged opponents more than his supporters. If Trump’s nominee is confirmed and Trump wins the election, the unhappy standoff between the two parties is likely to continue with little institutional change. Of course, much depends on which woman occupies the seat. But no one can make any prediction as to what will happen if Trump’s nominee is confirmed, followed by Biden claiming the presidency and Democrats claiming the Senate.
Senate Minority Leader Charles Schumer says that if the Democrats gain control of the Senate, “nothing is off the table.” In the New Yorker, Jeffrey Toobin gives content to that threat when he offers potential Democratic reforms, such as changing the rules on the filibuster and even adding new places to the lower federal court. More dramatically, the Democrats could plump for statehood for the District of Columbia (an issue that raises thorny constitutional issues) and Puerto Rico, to create a heavy tilt toward Democrats on an enormous range of political and electoral issues. Still others have proposed limiting the jurisdiction of the Supreme Court to help insulate progressive proposals, including those on the Green New Deal, from judicial invalidation.
But more to the point, the Democrats could seek to alter the number of seats on the Supreme Court. The Constitution speaks of one Supreme Court, but the number of judges has always been set by statute. Any effort to add seats would dramatically change the institutional dynamics of the court in ways that are hard to predict, but an unwieldy body could find it more difficult to hear and decide cases in a prompt and expeditious fashion. And the Republicans could try the same maneuver should they regain power when the majority of Democratic justices remain on the bench. The previous effort at court-packing by Franklin D. Roosevelt brought forth similar anxieties that were quickly put to rest by a turnover in court membership. But this change is likely to prove more permanent.
In general, it is highly risky to challenge sub-constitutional norms that have been embedded in the structure of government. The federal government is a complex lattice, and no one can predict what effects changing the structure of the Supreme Court will have. All this does not mean that we should not think more systematically about the structure of the Supreme Court, but only that such debates should happen outside the context of any particular nomination fight. For example, it would be wise for Congress to consider establishing term limits for the justices at some point after the presidential election—a process that would require a constitutional amendment. A term of eighteen years seems far preferable to a lifetime appointment, if only because it reduces the stakes in any given confirmation fight and secures rotation in office.
The risk for Trump is that if he pushes ahead, he will usher in a set of constitutional convulsions that will be difficult to undo. He already has five conservative votes. He should gracefully back off, and let the political process take its course.
© 2020 by the Board of Trustees of Leland Stanford Junior University.
Published in Law, Politics
I agree. Epstein says it so much better than I do.
So, the best way to promote civility and productive public discourse is to appease a party that threatens anarchy if they don’t get what they want? Seriously? Since when do conservatives believe that giving in to blackmail is a winning strategy?
The left has essentially taken the childish trope of “if my team can’t win I’m taking the ball and going home” and turned it into a political philosophy. This cannot stand. Today, they are taking their ball and going home; tomorrow, they are tearing down the hoop, ripping up the blacktop, and kidnapping the referees.
We survived the Kavanaugh fiasco, and we’ll survive this. The clutching of pearls on both the hard left and the soft right is an act of transparent Kabuki, and I’m tired of being the party that falls through the trap door.
As I recall, it was Ted Cruz who argued that attempts to nominate palatable candidates is how Republicans end up with unreliable judges like Roberts. If we want another Thomas or Scalia, Republicans must swing for the fences.
There is no point in selecting a nominee in order to please Collins/Murkowski since they have already announced that they oppose, in principle, confirming anyone during the current calendar year. Ignore Collins/Murkowski and choose the constitutionalist.
Should we blame him for the convulsions when the Democrats are the ones convulsing?
Anyway, I figure if he backs off he loses the election. GOP voters don’t need another reason to wonder why the GOP doesn’t fight. It’s no good for a GOP President to tell them he’ll give them what they want if they elect him again. Not when he can give it and opts not to.
You know, you’re right. I mean, if we don’t give the left want it wants they might try to burn down our cities, upend constitutional government, or threaten physical violence!
But who am I to argue with such wisdom?
Neville Chamberlain hath spoken.
Every one in here up to comment #4, I agree with wholeheartedly- except for Epstein and Gary Robbins.
They are free to negotiate with terrorists with someone else’s future. My kids have to live here.
My questions are: 1. If the election is contested, like it was in 2000, how can it be resolved if the Supreme Court is needed to intervene to solve it, like 2000, if there are not nine judges? 2. My next question is, is it not the president’s prerogative to nominate a new judge upon a vacancy? So what if its an election year. If he appoints fair, balanced and talented judges, and the Democrats shoot them down, it will be because they are throwing their usual temper tantrums, not because the person is qualified and would be a good judge. 3. Do all cases cease being heard until there are nine judges? Another reason to get on with it.
I get it that Ruth Bater-Ginsburg was a talented, trail blazer – may God rest her soul. She was blessed with a long life in spite of several serious illnesses, and had her day in the sun, to do many great things and she did. It is also a time of mourning, for people to pay their respects.
I find it interesting that she passed on the eve of Rosh Hashana, a Jewish woman, during the first peace agreement to take hold in the Middle East between Israel and her neighbors, and the whole country is holding its breath. Even the stock market is off kilter. Yet, the only thing people are talking about is that the Democrats feel they have a “right” to appoint the next judge, no matter who wins the election, and there will be mayhem unless they get what they want. I don’t think a legal mind like Judge Bater-Ginsberg would have agreed that that is right or legal.
I also found this remark puzzling: “Trump has stated, surely incorrectly, that he has “an obligation” (as opposed to an option) to nominate. He has already announced it will be ‘a very brilliant woman.'”
I see no reason why a President who has watched the forces of anarchy attempt to wage an unsuccessful impeachment campaign against him, as well as the COVID soft coup, would not wish to preserve his power as a President and therefore he would view the need for a Constitution-respecting SCOTUS member as an obligation.
Given what we are facing as a nation,”Options,” are for “sissies.”
If Trump had 5 reliable votes on the Supreme Court I would agree with the esteemed @richardepstein. But he doesn’t, and we don’t. So this needs to get done.
This is 0 for 3.
There are not five reliably “conservative votes” on the Court.
Trump doesn’t do “graceful.”
The “political process” has already taken its course, and the Republicans control the Senate. The Senate should dictate the appointment of a new Justice, not abstract political considerations driven by fear.
One for one, as is the case going forward
Epstein is fluent in liberish.
Roberts is not a reliable conservative. He is as reliable as Mitt Romney or the late John McCain.
What’s not addressed in Prof. Epstein’s post is anything to do with the possibility of a contested election where the votes on the Court will be paramount as legal challenges might even drag on near Inauguration Day. Already there are legal challenges making there way through the federal court system on the number of days allowed to count mail-in ballots and whether signatures from voters on those ballots have to match…because, you know, that is such a bothersome requirement.
So, putting off confirming the President’s nominee is not a wise solution and smacks of appeasement to the Civil War Party that has been winking at and even egging on the rioting, burning, and looting of America’s cities.
McConnell needs to call hearings and a vote as soon as POTUS puts forth his nominee. Confirmation needs to happen before Election Day. Not a day later.
Epstein seems to be among the many who appear to ignore what became The Biden Rule, from 1992, which is that it might be considered reasonable – but still not technically required – to not have a Supreme Court nomination/process in an election year, when the President and the Senate are not controlled by the same party. Which was the case in 2016, but is not the case now.
And on the other side, in 2016, Wise Latina Sotomayor and RBG herself, both said the process should go forward.
She was a master!
Brandon,
I think you have the theme here exactly. Dr. Epstein is talking about a political climate that simply doesn’t exist anymore. The leadership of the Democratic Party actually endorsed rioting, arson, looting, assault, and attacks on the police. They deserve to lose and lose big. Their point of view has moved so far to the left as to be just plain idiotic.
No appeasement.
Regards,
Jim
It never ceases to amaze me how very smart people can be so completely wrong.
Basically, our scholar friend Mr. Epstein takes it as a given that we are dealing with thugs. That the only hope to preserve what freedom we have, or have left, is to grant these unconstitutional mobsters their wishes.
No blame, no accountability and no punishment is even considered. It’s a typical limousine liberal approach. Republicans are tasked with being responsible, accountable and careful in preserving our Constitution, Democrats are akin to soulless animals who are expected to attack and kill out of instinct.
This is simply cowardice and the application of a reprehensible double-standard. One “wrong move” by Republicans kills the hostage.
There is absolutely no reason under our Constitution that should prevent our President from nominating a replacement. Even I, a high-school dropout with no credentials, other than my resume as a professional clown, can argue with Professor Epstein on that one and win the debate.
Threatening to make the District of Columbia a state with two Senators? It’s a naked power-grab with zero justification. The Democrats might as well be telling us they will bomb the Capitol Building, deface and burn the original copy of the Constitution, and lynch Mitch McConnell.
Epstein will say, Okay give them the Senators, then. We don’t want that!
What a pussy.
@donwatt, in his post “On SCOTUS,” notes:
So the norm is to nominate and vote. Epstein is completely wrong to assert that for DJT to nominate someone and for the Senate to hold a vote before the election is challenging “…sub-constitutional norms that have been embedded in the structure of government.” Rather, he, the Dems, “moderate” Republicans (e.g., Murkowski), etc., are the one challenging so-called “sub-constitutional norms”.
I don’t want to go all Samuel Adams on them, but I’m sorely tempted.
On a related note, I saw this link a little while ago to Jonah Goldberg’s Los Angeles Times column today, suggesting the Republicans make a deal not to bring a nominee to the Senate for a vote before Dec. 31, if the Democrats will agree not to pack the Supreme Court next year:
This seems to go on the assumption the Democrats are going to win the Senate and White House, and that Chuck Schumer is going to be more honorable than George Mitchell was 30 years ago, when he made the deal with GHWB to raise taxes (which Bush did sign into law) in exchange for budget cuts (which Mitchell and the Senate never presented to Bush). Basically, it assumes the Democrats have become more trustworthy in three decades and that they would be more honor-bound by a deal with Donald Trump and Mitch McConnell than they were on a deal with George H.W. Bush and Bob Dole.
In the argument above, the assumption is Trump and McConnell challenging sub-constitutional norms in terms of the nomination and confirmation would be the trigger for the Democrats to attempt to pack the court, even though the Democrats have been making open comments for over a month now about packing the court, at a time they still believed RBG would be a member of it in 2021. Based on that, you’d have to assume the Democrats were merely bluffing prior to Friday evening about their court-packing plan, but are serious now, only because Trump might get his third court appointment.
(As for this forcing Biden to publish his list of nominees, only bad internal polling numbers can do that — just as with condemnation of the riots, it’s not as though the media’s going to push Joe to come up with a list; it’s only if voters start dinging him in poll responses that he’ll release a list, and how much a specific progressive name or two on the list would influence swing voters is open to question.)
Key quote from the article —
This is why it is a bad idea.
Jonah ‘Here’s the deal’ Goldberg has the brilliant idea of negotiating with Democrat terrorists. No record whatsoever of keeping their promises to anyone, much less Republicans.
This is Nancy Pelosi and Chick Schumer we are talking about. These are the same people who said the exact opposite about this same situation 4 years ago. Hell, they said the exact opposite of just about everything the ever stood for, and Jonah thinks it’s a good idea to trust these snakes.
Amazingly, Jonas’ faction of second-guessers and self-elected hall monitors actually presume to advise Republicans on tactics and strategy with no shame. The LA Times runs his column. That should be a giant tell. “Let Jonah Goldberg lead the sheep to slaughter”.
Almost as absurd as Jen Rubin writing for WaPo.
The fact they threaten is a reason to move ahead, not stop.
Force them to do it. Call them on it. Let them pack the court. Then when the GOP is in power again, it can pack the court.
Rinse. Wash. Repeat.
Heck, what the GOP should have done when they had all three is eliminate the entire Federal Judiciary, totally rebuild it in a way that makes sense, and let Trump appoint all the judges, and just vote them all in at once.
Total revamp.
Oh, and pass it to it takes a 2/3rds vote to undo. No way to enforce that, but get it in ink.
And added 6 more ultra conservatives to the Supreme COurt.
But, as usual, the Republicans will let the Democrats wreck the norms. Just like that always have.
Jonah Goldberg’s next column: I have this great idea for a summit at the UN for a deal banning nukes and ushering in total World peace.
Blah blah blah blah for another 500 words …
But that of course hinges on world leaders, China, Russia, Iran, Israel – and of course, Trump – and others to work together, and everyone is out of practice with that sort of thing…
He gets paid to write this kind of thing!
Must be nice to have been given a job on mommy and daddy’s reputation, and write a few columns a week for the big bucks.
Honk honk, as the kids say. “[S]ub-constitutional norms” aren’t worth the paper they’re not written on except as a tool of the ruling class, who ignore them when they want to. As an excuse not to do something hard – like overturn Obamacare or the hundreds (thousands?) of patently unconstitutional laws, regulations and precedents that prop up the left-liberal permanent administrative state – they provide a wise-sounding and almost ‘conservative’ formula for pre-emptive surrender. We’ve seen for over a century where that leads (Jim Crow and its modern version, the Imperial judiciary, a permanent left-liberal and unelected Deep State, pervasive thought policing, and practical immunity for the violent foot-soldiers of the ruling class).
If the government can tank the economy and impose unprecedented limitations on civil liberties for a flu, the Court can darn well do its job of upholding the actual, written Constitution, and the other two branches can do their actual, written job of appointing a judge.
Can you avoid personal attacks on people you disagree with?
But fortunately, not by ME.
We have nothing to fear but fear itself. ~someone
Preposterous. As if the Democrat Party and their rogue posse can be trusted to do anything but shred paper, push lies, and molatov cocktails.
This is the political process taking it’s course. This is the way it has always happened. This is the “norm.”
Me too. I would like to at least leave the lights on until I’m gone. But if my future is ruined, who cares, as long as the Anti-Trumpers and RINO’s got to feel good about themselves before they left the room, right?