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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
And if he backs off, he ratifies that same convulsion that entrenches a one-party government. Better not to acquiesce; better not to have it happen by putting his stamp of approval on it.
You mean the way you avoid personal attacks on Trump?
Trump opened his presidency looking for opportunities to reach across the aisle and extending olive branches, only to be bathed in the spittle of slanderous Democrats that once lined up to suck up to big donor Trump. While they used the FBI, the FISA Court, and the Moeller investigation as partisan attack dogs. Dr. Epstein’s reflexive emotional reservedness does him and the nation no service in this instance, the other side has declared war and deployed in the streets of this nation. The only proper course of action is to deny them the power to extend that campaign at every opportunity until the republic is safe again.
With his extensive scholarship in Roman history, Dr. Epstein should appreciate the curse that will befall our children and their children were we so cold blooded as to adopt his detachment and his advice.
One nation. Under God. Indivisible. With truth and justice for all.
I am always grateful for Mr. Epstein’s informed and insightful commentary. But there are two problems with the transaction he proposes here.
First, Republicans would be giving up – or at least seriously risking – an opportunity that would be impossible to regain. The most that Democrats could offer in return would not only be a mere promise, but a promise to defy the wishes of many of their already-galvanized constituents. And this promise would necessarily only be good for an unspecified period of time that could well end the next time they want some leverage.
Also, if court-packing is the Democrats’ threatened retaliation, it is worth asking why court-packing has not occurred since they first contemplated it nearly a century ago. The answer, as even Joe Biden has pointed out, is that Republicans can court-pack too. It is truly a “nuclear option” for which the only defense, at present, is a form of mutually assured destruction.
This is called “fencing” – making verboten what goes beyond the law. I reject it.
As a public, wealthy, person who drives political opinion, Jonah should not be exempt from criticism.
Don’t like it? Skip it.
Attack Jonah’s ideas, not him personally.
Jonah doesn’t limit himself to attacking his opponent’s ideas when it comes to Trump. Why should he and his BAD DOGS be exempt from similar personal attacks?
No no no! Trump and the Republicans should push ahead. There may be five conservative votes on the court, but not all are reliable. My guess is adding one more conservative justice will make Roberts swing to the left, and we’ll be back to a whole bunch of 5-4 rulings . . .
I thought the only “norm” was the Constitution”? I think I’m old enough to remember that document. I believe the President’s term begins On January 20, 2017 and ends on January 20, 2021. Where does it say his term is over before that?
It’s part of the Ginsburg Emanation.
Her amending spirit reaches out past the grave to plague the text even from beyond the veil.
Stad,
You got it right. I wonder if Roberts will change his gender too? Who cares. Let’s secure a conservative majority right now.
Regards,
Jim
I think Professor Epstein may underestimate President Trump’s political smarts.
Judge Barbara Lagoa of the 11th Circuit was confirmed with 80 Senate votes. As Guy Benson says, nominating Lagoa could seriously complicate the Left’s “identity/extremism attack playbook.” A Cuban-American from Florida, Judge Lagoa could also help the President win in November. She’s the daughter of a Cuban political refugee, and as a lawyer she represented Elian Gonzalez’ family.
That sort of personal history makes it highly unlikely that Judge Lagoa will “evolve” (i.e. defect) ideologically as happens to too many GOP high court nominees. With today’s demographic tendencies, it’s more important than ever to consider the psychological profiles of prospective nominees.
In the court’s internal dynamics, Judge Lagoa’s background might also mute the influence of Sonia Sotomayor, now its most left-wing member, who won’t be able to “guilt” the old white brethren as the sole Latina from the striver class.
Another reason the President must reject Professor Epstein’s view on delaying Justice Ginsberg’s successor: a new GOP-appointed justice will discourage Democrat election mischief on mail-in ballots. Just as you don’t cheat the speed limit when there’s a police car in your rear view mirror, even Democrat Party lawyers might be deterred from fraudulent claims and spurious motions by the knowledge that an inevitable smackdown will come from five or six Supreme Court justices.
Epstein is correct that the Democrats will try to stack the Court as soon as they have the opportunity. So let him draw up a constitutional amendment permanently requiring a nine member Supreme Court. Maybe also include a mandatory retirement age of — 80? 85? — but such a limit should only be applicable to justices nominated after the Amendment is ratified.
That’s only a small part of the norms by which we are ruled, and the Constitution itself assumes other norms.
It depends on whether the President is a Democrat or a Republican. As I mentioned elsewhere, if the President is a Democrat his term begins about three months before the election and ends maybe a year or so after his successor takes office, after the successor has been sufficiently co-opted and/or beaten into submission. The Republican can fill in some of the remaining time, assuming he gains sufficient trust from the State Department and other deep state agencies. If you insist on a written Constitution, I’m pretty sure you can find it written down in the New York Times.
Four conservative votes. Roberts may not be a reliable liberal vote, but he’s very far from being a reliable conservative vote, and when it has counted most, he has sided with the liberals.
If Trump adds a conservative, it seems most likely that Roberts will become even more liberal.
I agree
And for the record, everyone: Stop ragging on Epstein, just because you disagree with him. He is absolutely entitled to his opinion, and it doesn’t erase some 50 odd years of solid conservative scholarship every time someone says something you don’t like. That sort of purity test is absolutely absurd, and conservatives should be better than that. If Richard Epstein does not remain one of your most well-respected and highly trusted legal scholars, in spite of disagreeing with you from time to time, than you are an idiot, full stop.
I happen to disagree with Epstein, and I think it is worth the risk of nominating a conservative; I also think that it would be disastrous to create incentives for these sorts of threats and bad behavior from the left, just because they don’t like the results of elections, or the timing of nominations, or whatever. The standard they want to set is, effectively, one-party rule, and they don’t give a damn about any sort of courtesy or underlying principle or anything else. If conservatives cave to that, it is unilateral disarmament and literally nothing more. Democrats are not acting in good faith, and their demands for Republicans to “act in good faith” are purely self-serving; that standard will flip, tomorrow, and everyone knows it, even the most vocal Democrats.
The Epstein type of situation might be similar to the news-reporting-bias issue.
When people have personal knowledge of some event that is reported in the “mainstream media” – be it the local newspaper, or TV station, or whatever – it seems they invariably recognize that the media reporting is wrong in some ways, often very important ways.
The takeaway from this should not be the assumption that we happened to catch the media in a mistake – or possibly a deliberate lie – but everything else they do is correct.
The more likely scenario is that the media is wrong about most things, perhaps even everything, but we just don’t know it for sure because we don’t have personal, direct knowledge of everything that is being reported.
So, if Epstein doesn’t take into account what has been directly seen of Democrat behavior in the past, isn’t the likelihood that he might be wrong about many other things too, that we took on faith or trust in his expertise, but we just didn’t know it for sure because we’re not all legal scholars able to point out his mistakes in those areas?
Every time I’m told that conservatives “should be better than that” I grab for my wallet to make sure it’s still there.
Better look inside too, to make sure it’s not empty.
Amen.
His opinion can be his opinion. But it shouldn’t be given extra weight from his conservative/legal scholarship, because it’s evidently not based on that. It’s just his opinion, and in a situation like that, not necessarily better than anyone else’s.
Yes. His analysis here isn’t a legal one, it’s a political opinion. He’s not necessarily better at that that any of the rest of us.
I thought he was more of a libertarian.
And not even an originalist.
But dang–I would LOVE to have HIS brand of non-originalism on the Court. Wish we could appoint him.
(More on this available from my profile page. CTR-F for “Yesterday’s Non-Originalism.”)
Biden would not be “forced” to do any such thing. Nor would Democrat voters or pundits or the media insist that he do so. This is one of the items that calls into question Epstein’s credibility – if any – on political prognostication. Along with any belief that Biden or any other Democrat would honor a commitment they might make to supposedly not pack the court if they win, etc.
Signed,
Epstein’s Mother
(Sorry, hadda.)
I thought Jonah got treated for that. No, wait. That was the Goldberg Emanation.
Reminds me of when Letterman would do a bit on his show about how hot it was outside, and they’d show a popsicle fastened to something, slowly dripping onto the sidewalk, and he’d say “reminds me of my visit to the urologist.”
One example, but not the best:
https://www.youtube.com/watch?v=XR5zXsfZ9vs&t=210
What is this “entitled to his opinion” stuff? Everyone is entitled to his/her opinion, including those of us who “rag” on Epstein for his opinion.
What I am saying is his analysis is badly flawed and frankly unworthy of his outsized gravitas in other domains. That becomes dangerous. He’s not just some guy in a bar.
One of the things that animate me most with my comrades in the right is their spectacularly bad political judgement as exhibited here by Mr. Epstein. These people have a lot of influence and they can be very persuasive – especially to people who are susceptible to credentialism and intellectual razz leaves-dazzle.
They’ve been guiding the Republican Party to loss after loss. These are the same people who thought Jeb Bush was a worthy nominee. Or Chris Christie, or Marco Rubio. All these men would have been crushed by the Democrat machine. They would have lost us the 2016 election to Hillary had we taken their advice.
They blithely move on as though nothing happened. They rarely admit they got anything wrong, and when they do, they continue to misdiagnose. And they still don’t get it!
The most significant flaw these people have when it comes to political tactics and strategy (assuming they are actually acting in good faith) is they do not understand the nature of our – and their – enemies. It’s on display here in this thread, to include Jonah Goldberg’s plan for preemptive surrender in exchange for a promise from proven liars and nefarious forces.
It continues to be a mystery to me how badly these people miss the obvious.
Epstein is a big boy, and I doubt he even reads comments… which is probably part of his problem getting political analysis right.