Earlier this week I posted on my tentative view that Democrats and progressives should not wage an all-out war against President Trump's nomination of Neil Gorsuch to the Supreme Court. I wasn't confident then that this view is correct, and while I still lean that way, I'm even less confident now, having read some opposing perspectives. (The most persuasive argument for fighting Gorsuch that I've read so far is this op-ed by Senator Jeff Merkley (D-OR) in today's New York Times.)
Regardless of where one stands in this internecine strategy debate -- indeed, regardless of whether one is a Democrat or a Republican, a progressive or a conservative -- the very existence of the debate underscores the high stakes of the Gorsuch nomination. Judge Gorsuch is 49 years old (younger than I am, I'm saddened to note); if confirmed, he could serve on the Court for another 40 years. (The oldest Justice ever to sit on the Supreme Court, Oliver Wendell Holmes, Jr., was two months short of his 91st birthday when he retired -- just a few months older than the runner-up, John Paul Stevens, who stepped down shortly after his 90th birthday in 2010. Two current Justices are over 80 -- Ruth Bader Ginsburg (who will turn 84 this March, God willing) and Anthony Kennedy (81 this coming July).) That would mean almost two more generations of dogmatic originalism on the Court and thus, most likely, of reliably conservative votes. By confirming and appointing Gorsuch, the current Senate and president could be tying the hands of as many as 20 future Congresses and 10 future presidents.
The multigenerational impact of a Supreme Court appointment, of course, is precisely why political fights over those appointments tend to be so intense. The Gorsuch nomination is likely to dominate the press and politics for the next several months, and to consume the energies and resources of interest groups on both the left and the right. Meanwhile, important political and legal issues directly affecting immigration, national security, the environment, gun safety (or gun rights if you prefer), civil rights, and many other crucial topics threaten to get lost in the shuffle.
One way to make Supreme Court nomination battles less destructive is to lower the stakes, and one way to lower the stakes is to limit the amount of time any given Justice can serve on the Court. About ten years ago, two distinguished law professors, Paul Carrington (of Duke) and Roger Cramton (of Cornell), came up with a plan to do just that. The Carrington-Cramton plan (an outline is here, beginning on page 1323) would allow the president to appoint one new Justice for each term of Congress (that is, every two years); the nine most junior Justices would conduct the active business of the Court, while the more senior Justices would perform judicial duties on the federal Circuit Courts and would fill in on the high Court when an active Justice is recused or otherwise unable to participate. The central effects of the plan would be to limit a Justice's active service to a period of 18 years and to allow each president at least two Court appointments. In addition to turning down the political heat during Court nominations, the plan would have ancillary benefits, such as reducing the risk that Justices will serve well past their most productive years.
The Carrington-Cramton plan is not perfect. Eighteen years is still a long time, so it is unlikely to entirely eliminate the rancor surrounding nominations. But 18 years is substantially less than the 30 or 40 we can expect many Justices to serve under the current system. And the guarantee of a new nomination every two years seems likely to have a moderating effect, as each political party can expect frequent opportunities to shape the Court -- and because few in Washington will want to incur the costs of an all-out nomination battle every two years.
The biggest risks of the Carrington-Cramton proposal are its potential effects on judicial independence and on the rule of law. The purpose of granting life tenure to federal judges -- technically, tenure "during good behaviour" -- in Article III of the Constitution was to promote (as Alexander Hamilton put it) "the complete independence of the courts of justice" from the political branches of government, so the judges would not hesitate to decline enforcement of unconstitutional laws. The biggest threat to judicial independence, however, is the concern that Congress or the president could retaliate against a recalcitrant judge by removing her from office or drastically cutting her salary. Neither could occur under the Carrington-Cramton plan; Justices would leave active service only by the passage of time or by choice (and would retain their salaries while on senior status), and nothing in the proposal would affect Article III's bar on the reduction of a judge's salary while she holds office. Nor would the plan affect lower federal judges, who would retain their lifetime tenure under Article III.
Some have quite reasonably worried that Supreme Court term limits would result in frequent changes in the law, as new Court majorities coalesce every few years and overturn or eviscerate decisions of the previous majority. I agree that this is a risk, and in fact I think it is the strongest policy argument against the Carrington-Cramton proposal. But I suspect the risk is lower than we might expect at first blush. Members of a majority on the Court (at least five Justices) will have an incentive, not just to overturn precedents with which they disagree, but also to preserve their own decisions against subsequent overruling by a different majority. A majority that readily overturns precedent can expect that future majorities will take the same attitude toward its decisions. On the other hand, a majority that is respectful of precedent contributes to a judicial norm that precedents should not lightly be overturned. The existence of such a pro-precedent norm can serve as an obstacle to future Court majorities that otherwise may be inclined to overturn precedents -- and can in turn provide some comfort to those future majorities that their own decisions will not be overturned.
The Court, too, has an institutional interest in preserving the public's respect for its authority, a respect that may be eroded if the Court is seen as shifting too easily with the prevailing political winds. (Members of the Court themselves have occasionally acknowledged this interest, most famously in 1992's Planned Parenthood v. Casey, in which three recent Republican appointees declined to overrule Roe v. Wade in part because doing so would undermine the Court's perceived legitimacy.) So it is far from clear that de facto term limits will appreciably undermine the rule of law by facilitating frequent overrulings.
There is, of course, considerable room for debate about whether the Carrington-Cramton plan could be implemented by federal legislation, without the need for a constitutional amendment. (For one thing, Article III requires that judges be allowed to "hold their offices during good behaviour," and there's a decent argument that a Justice forced into senior status after 18 years no longer "hold[s]" the same "office" as a result.) Carrington and Cramton, mindful of the many practical obstacles to successfully amending the Constitution, offered their plan in the form of proposed legislation. I for one would much rather see the plan given constitutional status, regardless of whether it could pass muster as a statute. Implementing it by statute alone runs the risk that Congress could subsequently tinker with the plan for partisan reasons -- eliminating the provision for one Court appointment per congressional term, for example, when a president of the opposing party takes office.
Is it conceivable in today's polarized political landscape that the Constitution could be amended to allow for Supreme Court term limits? Amending the Constitution requires (per Article V) a two-thirds majority in both houses of Congress (or a national convention, which hasn't happened since the original one in 1787), plus approval by the legislatures (or special conventions) in three-fourths of the states. It strikes me that the chief current impediment here is likely to be Congress, not the states. Polls suggest a large majority of Americans favor term limits for Justices; judicial term limits have long been a favorite talking point of Republicans and other political conservatives (who control most state legislatures); and all but four states already limit the terms of their own high court judges. The obstacle will be Republicans in the current Congress, who one suspects would be loath to voluntarily limit the impact of a Gorsuch appointment or of any other Justices they may have the opportunity to confirm under the Trump administration.
While I hesitate to admit it, a push for Supreme Court term limits might actually be a reason for Democrats to fight the Gorsuch nomination with everything they've got. If Republicans know they're in for a tooth-and-nail struggle on every high Court pick Trump is able to make, they have some incentive to bargain -- perhaps by agreeing to propose a term-limit amendment if Democrats agree not to filibuster Gorsuch and any other Trump nominees.
Would that be a worthwhile bargain for Democrats? I tend to think so -- but as I've always been quick to admit, I'm no political strategist. In any event, Democrats should start thinking about making Supreme Court term limits part of their long-term political strategy.
Friday, February 3, 2017
Wednesday, February 1, 2017
Why the Democrats should not fight the Gorsuch nomination (too hard)
This morning in my inbox, I found emails from half a dozen progressive organizations I support, all urging me to send money to help them oppose President Trump's nomination of Neil M. Gorsuch to the Supreme Court. I may write a few checks, but my own inclination is that Democrats and other progressives should not mount an all-out campaign against the Gorsuch nomination.
Why not? After all, Judge Gorsuch is being nominated to a seat that was, in essence, stolen from President Obama by the Republicans who control the Senate. With nearly a year left in his presidency, Obama tossed Republicans an olive branch, nominating Merrick Garland, a highly qualified centrist, to the Court. But the Republicans played politics, unprecedentedly refusing even to hold hearings on the Garland nomination. Their justification -- that the next Justice should "be determined by whoever wins the presidency" in November -- was undermined by, among other things, hints from the Republican camp that they would reject any nominee put forward by Hillary Clinton if she were elected.
The Republican gambit payed off when Donald Trump was elected president. For Democrats to roll over now, with an opportunity to fight back by opposing Judge Gorsuch, might seem like the definition of weakness. As New York Times columnist David Leonhardt puts it, "The only thing worse than the system that the Republicans have created is a system in which one political party volunteers to be bullied."
I don't think the Democrats should volunteer to be bullied. But you don't pick a fight against a schoolyard bully when you know you're going to lose, and when there's not much at stake to begin with. You pick a fight when there's something important worth fighting for -- and, ideally, when you've got a chance to win it.
There's no question that Neil Gorsuch is a doctrinaire judicial conservative in the mode of Antonin Scalia, the Justice he'd be replacing. As I've written in my academic work, the all-encompassing, single-minded originalism endorsed by Scalia and Gorsuch is indefensible as a methodology of constitutional interpretation and typically serves as a cover for the imposition of a judge's conservative political views. But it's unlikely that Gorsuch will move the Court appreciably farther to the right than it was before Scalia died. Essentially, Gorsuch for Scalia is a one-for-one trade -- a disappointment for progressives, who had hoped for a moderate-left majority on the Court, but hardly a disaster. Given the demonstrated capriciousness of President Trump, we could have done much worse. And since Republicans currently control the Senate, any concerted resistance by Democrats to the Gorsuch nomination almost certainly would be futile: Republicans could simply modify Senate rules to prevent a Democratic filibuster.
The real disaster would be a far-right Trump appointment to fill a second vacancy on the Court. If Gorsuch is confirmed, the Court will lean to the right, as it has at least since George W. Bush's appointment of Samuel Alito in 2006 (and arguably since Bush pere's appointment of Clarence Thomas in 1991). But Justice Anthony Kennedy presumably will still cast the swing vote in many high-profile cases, sometimes siding with the four moderate-liberal Justices as he frequently has in the past. Only if Kennedy, or any of the Court's four moderate-liberals, leaves the Court do we stand on the edge of a cliff. A Trump appointment to replace any one of these five -- Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, or Elena Kagan -- would tip the Court to a solid conservative majority, perhaps for decades.
My worry is that a no-holds-barred fight against the Gorsuch nomination now -- one Democrats and progressives are likely to lose -- would drain political capital that could be spent on opposition to the next Trump appointment. Democrats could be branded as obstructionists (a bitter irony, but a real danger in today's political climate), and the troops could lose faith after fighting a losing battle. Funds spent in vain to oppose Gorsuch might not be so readily donated again to fight the next nominee. And, perhaps worst of all, a concerted campaign against Gorsuch is likely to distract Democrats and progressives (not to mention the general public) from the many other urgent political and legal battles that must now be waged in the Trump era, from immigration to civil rights to the environment.
Of course, keeping our powder dry for the next fight does no good if the next fight, too, is unwinnable. But remember that the midterm elections arrive in less than two years. If Republicans in Congress continue to support the Trump administration, there's a real possibility that they will lose large numbers of seats in both houses of Congress. It's unlikely that the Democrats can regain control of either house, much less both of them, in 2018: In the Senate, most of the seats to be filled in that election already belong to Democrats, and in the House, gerrymandering has made it difficult for Democrats to take back large numbers of seats. But even significant Democratic gains could shift the political climate considerably post-2018, making Senate Republicans wary of endorsing a far-right or otherwise non-mainstream Trump nominee. If a Court vacancy occurs after the midterms, an all-out progressive campaign against such an appointment might actually have some traction.
And event if the odds are stacked against us, Democrats and progressives will have no choice but to strongly oppose a Trump nominee to fill a second Court vacancy (assuming, of course, that Trump doesn't pull one of his patented volte-faces and nominate a liberal). That nomination will simply matter too much. The Gorsuch nomination, in contrast, is unlikely to change the Court's decade(s)-long right-tilting status quo.
Of course, I'm no political strategist. But my strong sense is that progressive groups and Democrats on the Hill should softpedal their opposition to Judge Gorsuch. There are bigger fish to fry, now and in the foreseeable future.
That doesn't mean Senate Democrats should affirmatively endorse Gorsuch, or even vote in favor of his appointment. How to vote strikes me as a tough call. At least one progressive lawyer whose judgment I respect has vouched for Judge Gorsuch's character and temperament, predicting that as Justice he would uphold the rule of law -- an important criterion given the Trump administration's apparent disregard for that central democratic value. There is no doubt that Gorsuch's legal credentials are outstanding (although the appointment of yet another Harvard Law grad would only perpetuate the troubling dominance of Ivy Leaguers on the current Court). And as I mentioned above, an alternative Trump nominee might be much worse from the progressive perspective. On the other hand, Gorsuch's dogmatic originalism is (in my view) an illegitimate constitutional methodology that promises to generate extremely conservative results under the guise of impartial judging. And there is the nagging fact that Judge Gorsuch's potential seat on the Court should have belonged to Merrick Garland.
If I were a Senate Democrat, I think my starting point would be mild but open-minded opposition to Judge Gorsuch's nomination. I'd be likely to vote against him but open to persuasion in the other direction. If I sat on the Judiciary Committee, I certainly would question him, politely but aggressively, about his views on constitutional and statutory interpretation, the role of precedent, the independence of the judiciary, and the rule of law. If I became convinced that Judge Gorsuch would not seek to overturn precedents on originalist grounds and would uphold the rule of law against the Executive Branch, I might give him my vote.
But I don't think I would join an all-out effort to derail his nomination. Such an effort almost certainly would fail -- and there are more important battles to fight.
Why not? After all, Judge Gorsuch is being nominated to a seat that was, in essence, stolen from President Obama by the Republicans who control the Senate. With nearly a year left in his presidency, Obama tossed Republicans an olive branch, nominating Merrick Garland, a highly qualified centrist, to the Court. But the Republicans played politics, unprecedentedly refusing even to hold hearings on the Garland nomination. Their justification -- that the next Justice should "be determined by whoever wins the presidency" in November -- was undermined by, among other things, hints from the Republican camp that they would reject any nominee put forward by Hillary Clinton if she were elected.
The Republican gambit payed off when Donald Trump was elected president. For Democrats to roll over now, with an opportunity to fight back by opposing Judge Gorsuch, might seem like the definition of weakness. As New York Times columnist David Leonhardt puts it, "The only thing worse than the system that the Republicans have created is a system in which one political party volunteers to be bullied."
I don't think the Democrats should volunteer to be bullied. But you don't pick a fight against a schoolyard bully when you know you're going to lose, and when there's not much at stake to begin with. You pick a fight when there's something important worth fighting for -- and, ideally, when you've got a chance to win it.
There's no question that Neil Gorsuch is a doctrinaire judicial conservative in the mode of Antonin Scalia, the Justice he'd be replacing. As I've written in my academic work, the all-encompassing, single-minded originalism endorsed by Scalia and Gorsuch is indefensible as a methodology of constitutional interpretation and typically serves as a cover for the imposition of a judge's conservative political views. But it's unlikely that Gorsuch will move the Court appreciably farther to the right than it was before Scalia died. Essentially, Gorsuch for Scalia is a one-for-one trade -- a disappointment for progressives, who had hoped for a moderate-left majority on the Court, but hardly a disaster. Given the demonstrated capriciousness of President Trump, we could have done much worse. And since Republicans currently control the Senate, any concerted resistance by Democrats to the Gorsuch nomination almost certainly would be futile: Republicans could simply modify Senate rules to prevent a Democratic filibuster.
The real disaster would be a far-right Trump appointment to fill a second vacancy on the Court. If Gorsuch is confirmed, the Court will lean to the right, as it has at least since George W. Bush's appointment of Samuel Alito in 2006 (and arguably since Bush pere's appointment of Clarence Thomas in 1991). But Justice Anthony Kennedy presumably will still cast the swing vote in many high-profile cases, sometimes siding with the four moderate-liberal Justices as he frequently has in the past. Only if Kennedy, or any of the Court's four moderate-liberals, leaves the Court do we stand on the edge of a cliff. A Trump appointment to replace any one of these five -- Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, or Elena Kagan -- would tip the Court to a solid conservative majority, perhaps for decades.
My worry is that a no-holds-barred fight against the Gorsuch nomination now -- one Democrats and progressives are likely to lose -- would drain political capital that could be spent on opposition to the next Trump appointment. Democrats could be branded as obstructionists (a bitter irony, but a real danger in today's political climate), and the troops could lose faith after fighting a losing battle. Funds spent in vain to oppose Gorsuch might not be so readily donated again to fight the next nominee. And, perhaps worst of all, a concerted campaign against Gorsuch is likely to distract Democrats and progressives (not to mention the general public) from the many other urgent political and legal battles that must now be waged in the Trump era, from immigration to civil rights to the environment.
Of course, keeping our powder dry for the next fight does no good if the next fight, too, is unwinnable. But remember that the midterm elections arrive in less than two years. If Republicans in Congress continue to support the Trump administration, there's a real possibility that they will lose large numbers of seats in both houses of Congress. It's unlikely that the Democrats can regain control of either house, much less both of them, in 2018: In the Senate, most of the seats to be filled in that election already belong to Democrats, and in the House, gerrymandering has made it difficult for Democrats to take back large numbers of seats. But even significant Democratic gains could shift the political climate considerably post-2018, making Senate Republicans wary of endorsing a far-right or otherwise non-mainstream Trump nominee. If a Court vacancy occurs after the midterms, an all-out progressive campaign against such an appointment might actually have some traction.
And event if the odds are stacked against us, Democrats and progressives will have no choice but to strongly oppose a Trump nominee to fill a second Court vacancy (assuming, of course, that Trump doesn't pull one of his patented volte-faces and nominate a liberal). That nomination will simply matter too much. The Gorsuch nomination, in contrast, is unlikely to change the Court's decade(s)-long right-tilting status quo.
Of course, I'm no political strategist. But my strong sense is that progressive groups and Democrats on the Hill should softpedal their opposition to Judge Gorsuch. There are bigger fish to fry, now and in the foreseeable future.
That doesn't mean Senate Democrats should affirmatively endorse Gorsuch, or even vote in favor of his appointment. How to vote strikes me as a tough call. At least one progressive lawyer whose judgment I respect has vouched for Judge Gorsuch's character and temperament, predicting that as Justice he would uphold the rule of law -- an important criterion given the Trump administration's apparent disregard for that central democratic value. There is no doubt that Gorsuch's legal credentials are outstanding (although the appointment of yet another Harvard Law grad would only perpetuate the troubling dominance of Ivy Leaguers on the current Court). And as I mentioned above, an alternative Trump nominee might be much worse from the progressive perspective. On the other hand, Gorsuch's dogmatic originalism is (in my view) an illegitimate constitutional methodology that promises to generate extremely conservative results under the guise of impartial judging. And there is the nagging fact that Judge Gorsuch's potential seat on the Court should have belonged to Merrick Garland.
If I were a Senate Democrat, I think my starting point would be mild but open-minded opposition to Judge Gorsuch's nomination. I'd be likely to vote against him but open to persuasion in the other direction. If I sat on the Judiciary Committee, I certainly would question him, politely but aggressively, about his views on constitutional and statutory interpretation, the role of precedent, the independence of the judiciary, and the rule of law. If I became convinced that Judge Gorsuch would not seek to overturn precedents on originalist grounds and would uphold the rule of law against the Executive Branch, I might give him my vote.
But I don't think I would join an all-out effort to derail his nomination. Such an effort almost certainly would fail -- and there are more important battles to fight.
Subscribe to:
Posts (Atom)