More On Expanding The Supreme Court
It's time to accept the desecration of our political constitution.
Yesterday, I didn’t get a chance to comment on the posts about increasing the size of the Supreme Court. When I started to write a comment, it grew long enough where I figured that I might as well create a post of its own.
The overarching question is what to do when McConnell and other Senate Republicans “violate democratic norms.” That’s weak phrasing. They have desecrated something sacred. Using this language of violation highlights that certain things should be inviolate, in a political sense, because the entire system of government depends on their preservation.
What have McConnell et al. violated? The political constitution, small “c,” of the United States as a democratic society. I’m using the term in the same way that Walter Bagehot, author of The English Constitution, did. Aside from the formal operation of any government, there is the “unwritten constitution” that animates and guides the formalistic side. Without the unwritten constitution, formalism easily devolves into a raw exercise of power within the boundaries of formal rules. Without it, opportunists and zealots will bend and break the formal institutions to suit their purposes.
When democracy collapses, formal institutions often remain, at least for a little while to provide a fig leaf of respectability. Officially, the Roman emperor was just a collection of existing titles, and the Senate continued to operate in the way it always had. The Reichstag continued to exist from 1933 to 1945.
While the current situation in the Senate is in no way as dramatic or sweeping as the creation of imperial Roman rule or the Nazi seizure of power, it is nonetheless a desecration or destruction of the political constitution. Formal institutions still exist, but they are either powerless, or a tool to undercut opponents who continue to operate within boundaries that the anti-constitutional faction have already negated. While there is a much bigger problem with constitutional desecration, since there are many Republican voters who believe that democratic opposition is illegitimate, we’re focused for now on the Senate and the Supreme Court.
The best response may not be packing the Supreme Court, or event alking about it right now. I think it was counter-productive, in a momentary political sense, for any Democratic leader or opinion-maker to start musing about that option, so soon after Justice Ginsberg’s death. It merely adds to the fevered politicization of a moment when we should be honoring her life, and fuels further Both-Siderism, especially in the press. However, in discussions like these, outside the forums of press conferences and op-eds, it’s worth saying that, whatever the solution is, it’s not going to involve working within the old boundaries and understandings.
It’s painful to admit that something sacred is dying, or has died. Many of those still in denial are likely to cling to the existence of formal institutions (“the Senate still rules in Rome”), even though the new regime is cynically using those institutions to keep people from opposing their public murder of the old order. Acceptance of the political constitution’s death requires the abandonment of hope that it will magically revive. “There must be some way that what we see with our own eyes right now is just a continuation of what we had before. If not, there must be some way, operating in the old ways, to restore the old order.” At some point, such sentiments must themselves die. Otherwise, we wander pointlessly in a dreamscape, oblivious of current realities, impotent to change them.
That’s not to say that something like the old order, the original political constitution, cannot be created. Democracy died in Spain in 1936, but a new democracy emerged after Franco’s death in 1975. Again, if we are talking about the restoration of the understandings that underpinned the operation of the US Senate and Supreme Court, we’re talking about a much smaller project than re-creating Spanish democracy after 1975, or German democracy after 1945. However, no project, big or small, will be possible without the recognition of its need.
Tyrannies don’t end because they succumb to sweet reason. The exercise of power will be required to resurrect our political constitution. Expanding the Supreme Court may not be the best solution, but it is not ipso facto the wrong type of solution.
I would say Republicans have indeed violated their oath to the Constitution. A president nominates a Supreme Court judge and the Senate considers it but that is not what happened with Garland. The new Republican rule is basically that presidents can nominate justices only when his or her party controls the Senate. That is not in the Constitution. A pure power grab would entail Dems creating 4 new openings. But since all the posters in OTB are so concerned with polity, maybe 2 openings would suffice. After all there are Ten Federal Districts plus DC. Each judge would oversee a district and the chief judge would oversee DC. Sometimes the easiest solutions are in front of us.
This reminds me of what was mentioned in the Federalism post, how Hawaii and Alaska were added as states at the same time, one Republican and one Democratic, much like how before the Civil War states were usually added as one slave state and one free state…these were norms meant to balance out power, this kind of compromise helped keep intact the political constitution, but when you have McConnell pulling his various shenanigans, and some of his defenders using the pathetic fig leaf of the Bork nomination, it is little wonder that Democrats want to retaliate, and as you state, the exercise of power will be the only thing that restores the equilibrium, the only thing that causes Republicans to step back from their power grabs…
About packing the Court, I had this idea:
1) Increase the number to 15 Justices, but do so in two stages.
2) In Stage One, Biden (we’re assuming he wins the election and the Democrats win the Senate) has tow years to appoint three Justices and get them confirmed by the Senate by simple majority vote.
3) Stage Two begins in 2023, after the Congress elected in Nov. 2022 comes into session. Three more Justices can be appointed between then and January 2024, but these, and all subsequent Supreme Court appointees, have to be confirmed by a 3/4 super-majority of the Senate.
What this does is create a 6-6 balance of GOP and Democratic Justices in Stage One.
Stage Two then forces the selection of moderates who’d be acceptable to both parties.
The immediate objection is that the GOP can then obstruct all of the Stage Two appointments. This is true, but they’d have to allow a balanced, even-numbered Court to proceed and very likely issue multiple ties. And the Democrats can obstruct all their appointments later
The better objection is the GOP just rides it out, takes back the Senate in 2022, and changes the law back. I don’t have an answer for that.
There may be one. If there is, I’d start looking in “What can the GOP accept in exchange for this?”
@An Interested Party:..how Hawaii and Alaska were added as states at the same time,..
*My 11th birthday.
49 star US Flag
Just tried to edit my 11:51 comment to add this image and got a message that I was not allowed to edit the comment.
@Kathy: I am extremely wary of establishing supermajorities for anything. We have a rule like that for passing budges in the CA state legislature, and the R’s, who were in a minority, but not a superminority, held out every year as a bargaining chip.
Those supermajorities might not end up forcing moderates, they might end up forcing vacancies, or concessions on other issues.
This may have already been referenced but since I’ve been out for a couple days, here is a history of the Supreme Court, I read recently.
Why the Supreme Court ended up with nine justices—and how that could change
The main idea I get from the history is that there doesn’t seem to be a lot of tradition that is so sancrosanct that it can’t be changed regularly. Congress can rearrange the Judicial System many different ways and has.
@Jay L Gischer:
When people find their policy preferences ignored, they tend to grow angry and restless. It’s best to reach some form of compromise and give the minority something so they’ll feel invested in the process, than to just steamroll over them.
@Mister Bluster: In protest against the injustice of Alaska and Hawaii not being states, I held off on being conceived until the following year.
@Kingdaddy: Can you elaborate on this?
That is, how have they violated—nay, desecrated—our norms? I think it’s at the core of the argument.
In my view, McConnell and company escalated a longstanding game of tit-for-tat in a way that was different in degree but not in kind from went before. You (and I think Steven and certainly most of the commentariat) see a clean break. How so?
@Raoul:
Not really. The Constitution mandates both the advice and the consent of the Senate. Implicit in consent is the power to withhold it. I’m fully sympathetic to an argument that accepted norms have been violated, but what they did (and are doing) isn’t troublesome to the Constitution. It’s troublesome to people’s ideas about what they think the Constitution should mean.
From an article that doesn’t use the word desecrate, but does talk about degrade an awful lot:
This is the aggressive lie. It’s not purely Trumpian, but Trump uses it every day. It’s a way of saying, “I’m lying to you. You know it. I know it. You know I know it. There’s nothing you can do about it, because I’m powerful, and you’re not.” It is putting a spotlight on oppression and subjugation.
James, if you’re struggling with what has changed, there you go. The Senate majority leader invented a rule in 2016, which we knew was an aggressive lie. In 2020, he’s ignoring his own rule, which is also an aggressive lie. He is saying, there is no principle, just power. He is saying it loudly and obviously. Refusing to hear it, to continue the psychological language I was borrowing in my post, is denial. We’re way past discussions of possible unfair treatment of Supreme Court candidates as part of a deliberate, bi-partisan process. It’s saying that the deliberate, bi-partisan process doesn’t matter. The body of a beloved Supreme Court justice and national icon had not even cooled when he raced to the microphone to say this aggressive lie, because McConnell clearly sees the raw exercise of power as all-important. This isn’t the restoration of some constitutional (small “c”) order as part of some long-overdue response to “Borking.” This is the destruction of any constitutional order, other than pure power.
@HarvardLaw92: A negative vote would have meet constitutional standards for sure- however ignoring the nomination all together would have flustered the founding fathers. Like I said – the GOP standard is in conflict with Constitution since the standard would require the Senate and the president be from the same party which clearly is not in the Constitution.
Forgot the link to the article:
https://slate.com/news-and-politics/2020/09/ruth-bader-ginsburg-death-mitch-mcconnell.html
Posted in another dying thread but relevant: All Biden would have to do is appoint a bi-partisan committed to come up with a list of 10 candidates. He picks 4 to be added to the Court–“legitimacy’ problem solved. In other words, as my Grandmother used to say: Go pick what you want for me to give you this ass-whoopin with.
This is what escalation with exit ramps to de-escalation looks like. It also makes Democrats look more like good-faith actors should the Republicans try to expand the Court in retaliation.
Biden also would have a chance to establish the Court with an independent identity as true 3rd party brokers.
It is entirely unacceptable for a “Judge” to be completely predictable in the way they vote. How are they different that partisan legislators? I would expect a Judge, someone with incredible insight and reasoning to find ways to both perceive and apply the law that average people simply haven’t considered. That’s not what we have on the court today. They goes for both the Conservative rubber stamps and the Liberal ones.
Biden could really do this nation a square if he put 4 purple judges on the court.
@Raoul:
Again, I think that’s more an example of “what I think the Constitution should mean”. The Constitution itself simply says consent – meaning the Senate has to agree in order for something the President wants to occur. There is nothing in it that requires the Senate to actually vote – or even consider – the President’s proposals. Moreover, the Constitution explicitly grants both houses the power to be the sole arbiter of their own rules. In practical terms, that means that the matter of how the Senate should proceed, on anything, is determined by the Senate. If they don’t want to vote, implicitly withholding consent by failing to vote at all, then they have the power to decide to do that.
As I said, I am fully sympathetic to the argument that it shouldn’t work that way, but the argument needs to be couched in those terms. i.e. “I do not like this”, not “This violates the Constitution”.
@Kingdaddy: So, I think our disagreement is simultaneously fundamental and marginal.
I think this overstates things. While the “rule” was indeed new, McConnell was right that there’s very little modern precedent for confirming a Supreme Court Justice in an election year.
As I’ve noted several times now, I think all but hardcore Democrats would have thought it legitimate if McConnell had invoked this “rule” later in the process. Had Scalia died six weeks ahead of the election, as Ginsburg has, I would have thought it perfectly reasonable for him to say: “We’re going to hold our consent until the Election.”
I think this is right but an overstatement. While it went unstated in 2016 he has made it clear many times since that the “rule” applied to divided government. Yes, that’s about power. But one can certainly form a legitimate rule out of it: “The Constitution requires the Senate to consent to a President’s appointment of a SCOTUS Justice. Very close to an election, we’re not going to give that consent to a President of the opposition party, on account of the people’s expressed will being split. Let the election decide.”
To be fair, he has repeatedly stated, and we’ve discussed many times on OTB, that he would absolutely confirm a Trump Justice in an election year, going back to at least 2017.
Again: I think the original move was BS, but mostly because of the timing. Six months later, it would have been perfectly reasonable. As it was, it was a naked power play. But I still see at as a relatively modest escalation of a decades-long, bipartisan fight over how Justices get confirmed.
We’ve gone, in our political science degree-having lifetimes, from highly ideological nominees like Scalia and Ginsburg being approved by unanimous consent to routine filibusters of nominees to the filibuster going away and Justices confirmed on a party-line vote. All of that is an assault on our unwritten constitution but it’s been gradual. The frog may have boiled but McConnell didn’t light the match under the pot.
The Supreme Court (or, frankly, the GOP Senate) as “a tool to undercut opponents who continue to operate within boundaries that the anti-constitutional faction have already negated” is exactly where we appear to be. Thank you for this framing.
What I struggle with is how much do we also abandon boundaries? Obviously decades of, as it were, Democrats bringing knives to a gunfight has not worked. But what are the moral guardrails as the fight escalates?
Conservatives used to give at least lip service to ‘slippery slopes’ but as the riverbank has collapsed, now what?
On another thread the question was asked ” Is the American Government legitimate?” The question can be narrowed even more: “is the Supreme Court legitimate?” Or is it in the process of losing it legitimacy? There has always been a high minded cover for the SC, that their job is to determine the Constitutionality of “”things” It is increasingly clear that they have begun, even against their will, to be another political legislative like body. Actual constitutional analysis be damned. In one sense it is inevitable, Justices are being nominated on how they will vote with the presumption being that constitutionality can be reverse engineered into preexisting opinions.
I wonder how Chief Roberts is feeling, seeing his control and legacy swirling towards the drain. He could be the next Roger Taney.
@James Joyner:
THAT’S NOT TRUE, for phuck’s sake.
Anthony Kennedy was confirmed on Feb 3rd, 1988. That’s an election year. That’s 6 weeks earlier than Merrick Garland was nominated. IN AN ELECTION YEAR.
So stop this, Dr. Joyner. It’s just not true. Unless 1988 isn’t “modern precedent”.
@James Joyner: Bullshit. Just complete bullshit. I can believe you are deluding yourself but please recognize that you are not describing reality.
The GOP under Trump and McConnell has thrown away any fig leaf about caring for the country as a whole or the norms about ANYTHING. All they care about is their power and maintaining it.
@EddieInCA:
Kennedy was confirmed to replace Justice William Powell, who retired June 26, 1987—a year and a half before the election. Reagan nominated Robert Bork to succeed him and he was defeated after an incredibly long and brutal confirmation fight that ended October 23–still a year from the election. Reagan then nominated Douglas Ginsburg, who withdrew from consideration on November 7 after admitting to marijuana use in his law professor days. Kennedy was nominated November 11, 1987—just three days shy of a year before the election.
As Wikipedia tells us,
So, let’s just say the Kennedy precedent is rather unusual.
@HarvardLaw92: It seems to me you’re ignoring the “Constitution” vs. “constitution” portion of @Kingdaddy’s argument. Yes, Mitch et al are clearly in the right as per the Constitution, but they ignore the dangers inherent in ignoring the peasants’ consent to be governed. Or maybe I’m just siding with the peasants gathering outside the castle.
@James Joyner:
You said..
Kennedy was confirmed in an election year.
So there is a precedence. Your statement is false.
@James Joyner:
Random trivia.
On that day in 1988, Paul Simon and Al Gore, were in Los Angeles (Westwood, actually), meeting with the owner (a billionaire) of the company I was working for, asking for campaign cash. I met both of them that day. Simon at 10am, Gore at 1pm. Dick Gephardt came the next day, and Biden came four days later. Gary Hart was scheduled, but cancelled, as did Jesse Jackson. I didn’t meet Biden or Gephardt.
@flat earth luddite:
No I get it. The problem with a “little c” constitution, as least as I’m interpreting it, is that if you ask 50 people what that means, you’ll get 50 different answers. It seems to be to be a proxy for convention. I’m fully on board that this violates convention, even accepted norms, but again, of those 50 people you’d probably find 25 that think it’s great and 25 that think it sucks – entirely based on who perceives themselves to be “winning”. I just get testy about “unconstitutional” being used as a place holder for “I disagree with this”.
They’re allowed to do what they’re doing, but it’s problematic, so we need to do something about that. Whether that’s change the rules or change the people is something I’m totally open to hearing about.
@James Joyner: “…in a way that was different in degree but not in kind from went before…”
A difference in degree can be a difference in kind.
It’s clear now that a GOP Senate will never confirm judicial nominations of a Democratic President.
McConnell will *say* XXXXXXXXXXXXXXXXX, but the position is that Democratic Presidents no longer have that power.
@HarvardLaw92:
The rules need changing and the only way to change the rules is to change the people, so both.
@James Joyner: Where is the line for you? What would McConnell have to do to demonstrate that he is actively destroying the portion of our political constitution over which he can have an effect?
@HarvardLaw92: Good point. There’s a reciprocal relationship between the official and unofficial constitution. One animates and guides the other. One occasionally demands greater clarity from the other.
@EddieInCA:
Sigh. This is silly. First, I said “very little precedent.” One case, 32 years ago, is one case. And, rather crucially, the vacancy didn’t occur in an election year. Having defeated on Reagan appointee and forced another to withdraw, they were hardly going to deny a third—appointed in the year before the election—a hearing. Indeed, he sailed through his hearing in 1987. The only thing that happened in 1988 was the final vote, presumably a function of a holiday recess. It’s just not even remotely comparable to the Garland situation. Which, again, we both agree was dirty pool. We just disagree with how dirty.
@EddieInCA: What are the odds!
@Barry:
Sure. I just don’t think this was it.
Given that McConnell and company confirmed dozens of Obama nominees to the courts, including two other Supreme Court picks, that seems over the top.
@Kingdaddy:
Again, I think he was continuing the steady erosion of the old norms. The Garland gambit was shocking but only by degree. It was worse than Reid stonewalling Bush appointees to the lower courts but only by degree. I’m not even sure it’s more egregious than invoking the so-called “nuclear option,” as Reid did (even though I favored it, it was a breach of the pre-existing norms).
@Kingdaddy:
What do you think of the 400+ pieces of legislation that the House has passed that McConnell refuses to bring up for even a vote?
@Grewgills:
Agreed. I can get behind that
@James Joyner: “But one can certainly form a legitimate rule out of it: “The Constitution requires the Senate to consent to a President’s appointment of a SCOTUS Justice. Very close to an election, we’re not going to give that consent to a President of the opposition party, on account of the people’s expressed will being split. Let the election decide.””
That’s ridiculous. How is ramming a nomination through days before an election “letting the election decide”? What does the partisan make-up of the senate have to do with anything? If the “principle” is that close to an election, the new president represents the will of the people and should be allowed to make the choice, how does that “principle” apply to what he’s doing now?
@EddieInCA:..Random trivia.
@James Joyner:
I’ll have to push you a little bit. Even if his actions were part of a trend, where is the line of unacceptability?
@Raoul:
I inclined to disagree, but then again I also think that their oath to the Constitution is
[With apologies to Malcolm X]
@James Joyner: [SMH]
@HarvardLaw92:
I agree. And I also get testy about similar invective using the phrase “the rule of law.”
@Kingdaddy: James Joyner writes:
So basically, he doesn’t realize that he’s the frog in the pot or is his comment the inverse of the “Eff You” that he’s warning “the left” about?
@wr:
Because, if the people elected a President of one party and, in the midterms that followed, kept/elected a Senate of that same party, it’s a much stronger signal than if they elected the President and subsequently declined to keep/put the Senate in the same hands.
@Just nutha ignint cracker:
I’m not sure what “pot” I’m supposed to be in given that I’m an outside commenter. But I used the same analogy this morning to describe the decades-long tit-for-tat over SCOTUS nominations. I think McConnell’s escalation was bigger but not nuclear.
Ahh, but the level of radioactivity is in the eye of the beholder…I’m sure there are many Democrats/liberals who think that what happened with Bork wasn’t going nuclear but a hell of a lot of Republicans/conservatives would disagree…
@James Joyner:
Then nuclear has no meaning. Because McConnell did something that had NEVER been done. So how is that not “nuclear?” Where does that fit historically?
I’d say that something never done in the history of the country qualifies as nuclear.
Oh, c’mon, people. Spare us the faux high minded arguments. This is raw politics, the sides have simply changed. The Constitutionality of what is going to happen is clear. Only the convenient and small minded arguments, and whining, remains.
“There’s nothing in the Constitution that says the president stops being the president in his last year,” Ginsburg said in a 2016 New York Times interview in which she called for Garland to receive a confirmation vote in the Senate. As for whether the Senate should take up a vote on Garland, Ginsburg said at the time, “That’s their job.”
You have all seen the statistics: 26 times before; WH and Senate control vs 50-50. Grow up.
@EddieInCA: I agree that it hasn’t happened in modern times. The last time the Senate refused to have a hearing was with Edward A. Bradford in 1852–also an election year. Granting that we haven’t had a lot of vacancies crop up in election years, the “rule” was a made-up one. Again, I would have thought it perfectly reasonable to deny a vote if the vacancy had happened much later in the cycle—August or September. But it was, at the very least, cyncial as hell with the vacancy occuring in February and the nomination made in March. Even moreso because Obama followed the recent norm of appointing a moderate.