A Supreme opportunity to overcome partisan rancor

During my senior year at Yale, I took a seminar called “Political Uses of History.” The topic of my final paper (accounting for most of the course grade[1]) was the history lessons used to defend/critique the nomination of U.S. Court of Appeals for the District of Columbia Circuit (DC Appeals Court) Judge Robert Bork to the United States Supreme Court (SCOTUS). Upon being nominated by President Ronald Reagan to fill the seat vacated by Associate Justice Lewis Powell on July 1, 1987, Senate Democrats immediately expressed dismay at Bork’s “originalist” legal perspective (the Constitution of the United States only means what the original framers of the document intended it to be at the time).

They were also disturbed by Bork’s role as Solicitor General of the United States on October 20, 1973.

On the night now known as the “Saturday Night Massacre,” President Richard Nixon, alarmed by Watergate Special Prosecutor Archibald Cox’s request for secret White House recordings, demanded that Cox be fired–which only the Attorney General could do. When both Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned rather than comply, the next person in line was Bork, who promptly fired Cox.

Bork ultimately lost his nomination vote 58-42. Reagan then nominated DC Appeals Court Judge Douglas Ginsburg, but he quickly withdrew his name after reports about prior marijuana use surfaced.

Oh, how times have changed.

Finally, Reagan nominated Anthony Kennedy, a judge on the U.S. Court of Appeals for the Ninth Circuit, and he was confirmed by the United States Senate (Senate) on February 3, 1988 by a 97-0 vote.

And after serving as the “swing” vote on SCOTUS for years, Justice Kennedy announced his retirement on June 27, 2018.

The tumultuous reaction to this news—laser-focused on the possibility that President Donald Trump will choose an ultra-conservative jurist who would be the decisive vote on issues like LGTBQ rights, abortion, guns and Obamacare—reminded me of my political uses of history paper.

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Just bear with me, then, while I review some recent history.

First, whether or not you approve of the filibuster (a final up-or-down vote can only occur if, say, 60% of legislators agree) as way to protect the rights of the minority party in a legislative body, it served to constrain judicial nominations by requiring a broad base of support.

Of course, it also meant that a determined minority could prevent any given nominee from a final up-or-down vote. After then-minority Senate Republicans kept doing just that to President Barack Obama’s nominees, the Senate voted 52-48 on November 21, 2013 to abolish the 60-vote threshold to end debate for all judicial nominations except for SCOTUS. In retaliation (and after Trump SCOTUS nominee Neil Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit, fell five votes shy of the required 60), the now-majority-Republican Senate voted 52-48 on April 7, 2017 to end the 60-vote requirement to end debate on SCOTUS nominees.

Goose, meet gander.

Gorsuch was then quickly confirmed by a 54-45 vote, with three Democratic Senators—Joe Donnelly (IN), Heidi Heitkamp (ND), Joe Manchin (WV)—voting yes. All three face reelection in 2018 in very Republican states: R+16.3, R+29.4 and R+35.5, respectively.

Why Gorsuch was nominated in the first place is the second bit of recent history to review.

On February 13, 2016, SCOTUS Associate Justice Antonin Scalia died. Soon after, President Obama nominated DC Appeals Court Judge Merrick Garland to replace him. Within hours, though, Senate Majority Leader Mitch McConnell (R-KY) announced that because Obama was in the last year of his presidency (and thus some sort of irrelevant lame duck), the Senate would not even hold hearings on ANY Obama appointment until after the November 2016 elections. Charles Grassley (R-IA), chair of the Senate Judiciary Committee—where any hearings would be held—concurred, and the seat remained vacant until Gorsuch was confirmed.

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Democrats, hamstrung by their current 49-51 minority in the Senate, appear to be taking two fundamental—and somewhat contradictory—stances on the vacancy created by Justice Kennedy’s retirement.

Some invoke the “McConnell Rule,” insisting no vote be held on a new SCOTUS nominee until after the 2018 midterm elections, even though there is no guarantee Democrats will net the two seats they need for a majority.

Others focus on defeating any nominee outright, honing in on the damage to their (and, full disclosure, my) priorities a solid 5-4 conservative majority could do, particularly the distinct possibility it would overturn Roe v. Wade, the 1973 SCOTUS decision that declared all state laws against abortion unconstitutional, effectively making abortion legal throughout the United States.

It should be noted that overturning Roe would not make abortion illegal everywhere in the United States. Rather, it would leave it to each individual state (and the District of Columbia) to decide whether abortion is legal within its borders. Still, many states have “trigger laws” that would immediately outlaw abortion to the extent legally possible the instant Roe is overturned.

Basically, then, the Democrats have two unpalatable options: try to delay the nomination until after the November 2018 elections, or assume a vote is inevitable and work to defeat it. The rub is that either option would require at least one Republican to buck her/his own party. For example, assuming Senator John McCain (R-AZ) is too ill to vote (and does not retire to give Republican Governor Doug Ducey the chance to pick a replacement), if the Democrats are unified, a single Republican “No” vote means the nomination is defeated 50-49. This, while not impossible, will not be easy either.

I feel compelled to note that this entire conversation is taking place BEFORE any nominee has even been announced. That in itself is worrisome.

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Let me address these two stances in turn before concluding with my own thoughts.

No political act enraged me more in the last few years than the theft of a SCOTUS seat by Senate Republicans. Barack Obama was president of the United States until noon on January 20, 2017, and the Senators elected over the elections of 2010-2014 were the representatives duly chosen to provide “advice and consent” on the nomination under Article II, Section 2. The people, whose will McConnell invoked, had already spoken by voting in the relevant elections. President Obama was thus denied a fair hearing and vote on his judicial nominee—that is theft.

As disgusted as I remain by that, however, I have deep concerns about the tit-for-tat invocation of the McConnell rule. Two wrongs do not make a right: as we remind our daughters, meanness by one to the other is not a license to be mean back.

I sympathize with the arguments that Democrats should not be a doormat, that McConnell brought this on himself, that turnabout is fair play, that the system is already broken…

And it is that last point that most gives me pause. With good reason, Democrats and like-minded Independents and Republicans decry the corruption and norm violations they see from the Trump Administration and its Congressional allies. But that powerful critique is severely undercut if the Democrats themselves use the violation of a norm (regardless of “who started it”) for their own partisan gain. This would simply be the rescinding of the judicial nominee filibuster all over again.

There is also the unpleasant whiff of “ends justifying the means” about invoking the McConnell rule. I recently called out the modern Republican Party for doing just that. It also recalls one of President Franklin Roosevelt’s worst moments: his 1937 scheme to expand SCOTUS by as many as six Associate Justices (which he would then appoint) to make it less hostile to the laudable New Deal.

It is fashionable to dismiss taking the high ground as weakness and some sort of “asymmetrical warfare.” And perhaps in this single instance—a uniquely pivotal SCOTUS seat following the theft of a prior seat—that is the correct conclusion. But that is a very slippery slope: if Democrats and their allies resort to using the same ruthless tactics to “win” this battle, how are they any better than the Republicans? Does that mean tribalist victory is all that matters now?

The argument may be moot—and mostly public posturing (pointing out the rank hypocrisy of blocking one nomination in an election year but not another)—since it is not clear the Democrats could actually prevent hearings and a vote, short of grinding the Senate to a halt.

And a far better argument for delaying hearings and votes is that a president who is the subject of a criminal investigation should not be allowed to nominate a SCOTUS justice who would almost certainly vote on questions pertinent to that investigation (e.g., Can a president pardon her/himself or be indicted while in office?).

The second stance is at least well within traditional Senate rules and has a successful recent precedent.

It still gives me pause, however, because I worry liberals and like-minded centrists have become too reliant—almost complacent—on the SCOTUS (and the courts more generally) to do too much of the heavy lifting of policy-making for them. Republicans, smelling blood on this point, successfully put SCOTUS front and center in the 2016 election.

It does not help that SCOTUS Justices have become as entrenched in their ideologies (though not always) as both major political parties—Justice Kennedy was the swing vote because the other eight Justices were so reliably liberal or conservative in their rulings. Gone are the days when President Dwight Eisenhower (supposedly) called his appointment of California Governor Earl Warren as Chief Justice “the biggest damned fool mistake I ever made.” Seriously, what would even be the point of arguing cases before SCOTUS if the outcome was always predetermined?

The more fundamental problem, however, is that the Democrats let too many state legislative seats get away from them in too many states over the last 10 years. It is in those very states that the most important policy outcomes—on abortion, LGBTQ rights, Medicare expansion, gun control—actually get decided. And that is how it is supposed to be. I am far from an “originalist,” but Article I and Amendment X strongly imply policy is meant to be decided, umm, politically, in the legislative arena.

I know: both parties (despite bemoaning “activist judges”) try to seek policy victories in SCOTUS by arguing that this or that law or Executive order is unconstitutional—and that the “right to privacy” articulated so elegantly in Griswold v. Connecticut had a profound (mostly progressive) legislative impact.

My point is simply that if Democrats put as much work into winning back legislative seats (so far so good) as they will into blocking President Trump’s next SCOTUS nominee that will greatly reduce their reliance on favorable SCOTUS decisions. They could even overturn many of those anti-abortion laws at the state level (not all of them, of course).

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I have previously called for cross-partisan dialogue—patriotic bipartisanship. After President Trump was elected, I also began proposing a “coalition of the center” to form in the Senate that would wield an effective veto over legislation, forcing broad compromises by both parties. Such a group could consist of “red-state” Democrats like Donnelly, Heitkamp, Doug Jones (AL—R+28.4), Manchin, Claire McCaskill (MO—R+15.9) and Jon Tester (MT—R+18.6); Independent Angus King (ME—D+5.9); and Republicans like Susan Collins (ME—D+5.9), Lisa Murkowski (AK—R+19.2) and, perhaps, Cory Gardner (CO—D+2.2).

Were this bloc (or even the smaller bloc of Donnelly, Heitkamp, Jones, Manchin, Collins and Murkowski) to insist, unequivocally, that President Trump select…

…a consensus nominee to replace Kennedy. “[Senator Heitkamp] told the president that he has a chance to unite the country by nominating a true non-ideological jurist who could gain strong support from senators on both sides of the aisle, rather than create more divisions…”

…they would elevate the traditional “advice and consent” role of the Senate above partisan rancor and force both parties to compromise, in effect restoring the judicial nomination filibuster.

Now, this would infuriate the conservatives who voted for Donald Trump (and President Trump himself) solely for the opportunity to remake SCOTUS in their image (though they still “won” with Gorsuch). And it would disappoint the liberal activists who want every Senate Democrat to resist President Trump at every turn (though this is easily the least-worst nominee they will get in 2018). But those may the necessary costs of restoring civil order to our public discourse.

Plus, how poetically just would it be if that “non-ideological” jurist was…Merrick Garland!

Until next time…

[1] I received an A on both the paper and the seminar, with a special commendation by Professor Joseph Hamburger.