Last week, one of the biggest political earthquakes in a long time took place in Washington, DC: Justice Anthony Kennedy announced his retirement after three decades on the bench.
This vacancy is the most consequential vacancy since at least 2005 when President Bush was able to appoint John Roberts to the post of Chief Justice, following William Rehnquist’s death, and appointed Samuel Alito to replace the Court’s swing vote, Sandra Day O’Connor. Alito’s appointment made Kennedy the new swing vote and shifted the balance of power on the Court further to the right.
Now, Kennedy’s retirement makes it almost certain that the Court’s conservative wing will have an absolute majority for the foreseeable future. Chief Justice Roberts will be the new swing vote, and despite a few defections (most notably, in Sebelius v. NIB), Roberts is a much more reliable conservative vote than Kennedy ever was.
The response to this news has been predictably apocalyptic from the left. Afraid that the new justice will overturn Roe v. Wade, and perhaps even Obergefell v. Hodges, the left has, thus far, utilized three main arguments to try to keep Trump from filling the seat.
Argument 1: “We will invoke the McConnell Precedent and assert that the American people should vote on the seat since it is an election year.”
This is, by far, the most common and the strongest argument in the Democratic arsenal. It was, but two years ago, when Senate Majority Leader Mitch McConnell announced that he would leave Antonin Scalia’s seat unfilled until after the presidential election. As I argued then, McConnell’s argument was an easily-debunked, face-saving excuse that had no basis in precedent or Constitutional reasoning, but sounded better than “we don’t want Obama to replace Scalia with a moderate” (even though that was the real reason).
As such, I can understand the temptation Democrats have to throw this back in the face of Mitch McConnell (and to a lesser extent, Donald Trump) by legitimizing it and using it to keep the seat open. However, I think this is a foolish and short-sighted strategy for several reasons. First, the McConnell Rule probably referred to presidential elections, not midterms. It is absurd to think that presidents should only be able to make appointments in odd-numbered years.
Second, granting bipartisan legitimacy to the McConnell Rule ensures that it will be used again. The Democrats should make a statement by not legitimizing McConnell’s strategy. Again, McConnell completely invented this doctrine that presidents lose their ability to make Supreme Court appointments when they are lame-ducks. It is not constitutional, and the Democrats should not give in to that temptation. Relatedly, this only serves to make confirmation battles even more contentious, and we need to find a way to stop that.
Third, however wrong McConnell’s proclaimed reasons were for keeping the seat open, it is true that the Senate is an equal partner in the process of filling vacancies, and they were under no obligation to confirm Merrick Garland (hence, the “stolen seat” narrative is false). This time, however, Republicans control the White House and Senate, so they have no one to stop them this time.
Finally, keeping this seat open for the midterm elections is the most surefire way to ensure that the Republicans not only continue to control the Senate, but possibly expand their majority. In 2016, Antonin Scalia’s open seat was probably the biggest reason why mainstream Republicans held their noses and voted for Trump (aside from maybe outright hatred for Hillary Clinton). In 2018, the Democrats have all the momentum and history on their side, as long as they do not do something stupid. Energizing the Republican base by obstructing a nominee (if they somehow gain the power to do so) and/or trying to make the election about an open Court seat is about the most stupid thing they could possibly do. It might play well for the Democratic base in California, but the Democrats are on defense in North Dakota, Florida, Montana, West Virginia, Missouri, Indiana, and to a lesser extent, a few other Trump-won states (Ohio, Pennsylvania, Wisconsin, and Michigan). These seats are critical for the Democrats if they want a shot at taking back the Senate next year. They will lose one or more of these seats if they inadvertently give Republicans a reason to show up and vote in November. And if the Republicans pick up a few seats this year, it could be a while before the Democrats win back the Senate, again. Therefore, for both constitutional and strictly political reasons, I would advise Democrats to not use this line of reasoning.
Argument 2: “Trump is under investigation, and thus should not be allowed to name a replacement.”
This argument really grasps at straws that may not even be there. First, being under investigation (as Trump may or may not personally be) does not deprive a president of his rights or his constitutionally-granted powers. This argument might have more weight if Trump had actually been charged with something and was in the process of being impeached. But since that is not the case, it is a really bad idea that argue that merely being investigated somehow strips the president of enumerated powers.
Second, some have argued that it would be inappropriate for a president to put on the Court a justice who might have to judge him in the future. A mere glance at the Constitution, however, immediately debunks this- only the Chief Justice presides over impeachment proceedings, and so this appointment will have no effect on any trial that might happen for Trump. As for cases involving the president or those closest to him outside of impeachment, I would imagine that any justice put on the bench by Trump would recuse himself if the situation warranted it, out of deference to their personal honor (the nominees Trump is considering are not the least bit like the snakes in his cabinet and staff).
Argument 3: “Kennedy’s son gave Trump a loan once, so the circumstances of Kennedy’s retirement ought to be investigated!”
Again, this is really grasping at straws. Like every Supreme Court Justice, Kennedy has postponed retirement until he could have a member of his preferred party name his replacement. It has been common knowledge for years that Kennedy wanted a Republican to name his replacement, and he has one in Donald Trump. Sure, the personal connection between his son and Trump may have increased Kennedy’s trust in Trump, but there is no grand conspiracy, here; just a Supreme Court Justice doing what every other justice in recent memory has done- wait until he believes that a like-minded justice can succeed him, based on presidential and Congressional politics. That is what Sandra Day O’Connor, John Paul Stevens, and David Souter all did. It is what Antonin Scalia tried to do, and what Ruth Bader Ginsburg and Stephen Breyer are doing, right now.
Those are the three main arguments about why Trump and McConnell should not fill the seat, at this time. The most absurd response to it, however, has come from certain law professors, who argue that the Democrats should “pack the Court” with six new justices the next time they control the Senate and White House. This is, without a doubt, the worst idea I have ever heard for reforming the Court.
Why is it a bad idea? The answer is that the “Norm of Nine” is the only norm left in these confirmation battles, and it is the nucleus holding everything together. First of all, Court battles are mercifully rare- with nine seats that carry lifetime appointments, most presidents only get to name one or two justices to the Court, who then stay put for 25, 30, 35 years or so. So when these vacancies do happen, they are among the most vicious battles in our legislature. Everything a nominee has ever said, written, or done is scrutinized, taken out of context, and used to blast them. Now imagine having these battles take place constantly, due to Court packing. Politics is vicious enough without pouring an ocean of gasoline on the fires.
Second, this would tie the judiciary completely to partisan politics and elevate its importance beyond anything the Founders remotely envisioned. As Hamilton wrote in Federalist 78, "in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them... [the judiciary has] no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment." In other words, the Court was always supposed to be the weakest among equal branches.
As for appointments, the Founders made the Court (and the lower federal courts) independent of partisan whims and popular rule by having the executive nominate people to fill vacancies and having the Senate exercise advice and consent via the confirmation process. Neither the President, nor the members of the Senate at the time, were elected by popular decision. The President, of course, is elected via the Electoral College (which can elect whoever it wants, regardless of popular vote) and the Senate was elected through the state legislatures. Therefore, federal judges would be insulated from the passions of the masses. This Court-packing precedent, however, would make federal elections entirely about justices. Each side would be competing for the right to appoint as many ideologues as possible and it would dominate all electoral considerations. Supreme Court justices were never supposed to affect elections like that. When the Court first came into being, turnover was high, being a Court justice was not seen as a position of prestige, and they did not even have a building specifically devoted to the Court for the first century and a half of its existence. If Court packing happens, the judiciary will completely usurp the other two branches as the center of our constitutional republic.
Third, once one side packs the Court, it will spark a chain reaction that will never, ever stop. If the Democrats put six new justices on the Court, the Republicans will respond with 6 or more of their own the next time they gain power. And then the Democrats will pack it even more, and so on. Eventually, the Court would become completely unrecognizable. The Court functions as a small, close-knit, deliberative body of the greatest constitutional minds this country has to offer. If a court-packing war happens, it will operate more like Congress than like the Court. Conference deliberations, coalition building, and opinion writing will all change drastically (just imagine how long opinions will run if there are 500 concurrences and 400 dissents on every issue). These are, but a few, of the consequences that will inevitably happen if the Democrats decide to experiment with opening Pandora’s Box (again).
And who knows what else the violation of the Norm of Nine might encourage? My guess is that rampant impeachment of justices would be just around the corner. And why not? If the Senate can operate with bare majorities doing whatever they want to the Supreme Court, what would stop them from beginning to impeach justices they do not like, for no particular reason? Court packing would strip most vestiges of judicial independence away from the Court; arbitrary impeachments would destroy the rest.
I do not exaggerate when I compare this court-packing plan to opening Pandora’s Box. The Norm of Nine is the final safeguard against a perpetual judicial war that neither side will ever be willing to end. Every branch of the government will be forever altered if the Democrats decide to try and pack the Court. The presidency will be reduced to nothing more than appointing judges (admittedly, this is already something of a problem, as President Trump’s victory is due in no small part to Antonin Scalia’s open seat). The Senate will spend all of its time on nasty confirmation battles that never end, as each side tries to gain the upper hand on the Court. And the Court, itself, will both be elevated to a status it should never have gained, and yet also be twisted into something completely unrecognizable.
This vacancy is the most consequential vacancy since at least 2005 when President Bush was able to appoint John Roberts to the post of Chief Justice, following William Rehnquist’s death, and appointed Samuel Alito to replace the Court’s swing vote, Sandra Day O’Connor. Alito’s appointment made Kennedy the new swing vote and shifted the balance of power on the Court further to the right.
Now, Kennedy’s retirement makes it almost certain that the Court’s conservative wing will have an absolute majority for the foreseeable future. Chief Justice Roberts will be the new swing vote, and despite a few defections (most notably, in Sebelius v. NIB), Roberts is a much more reliable conservative vote than Kennedy ever was.
The response to this news has been predictably apocalyptic from the left. Afraid that the new justice will overturn Roe v. Wade, and perhaps even Obergefell v. Hodges, the left has, thus far, utilized three main arguments to try to keep Trump from filling the seat.
Argument 1: “We will invoke the McConnell Precedent and assert that the American people should vote on the seat since it is an election year.”
This is, by far, the most common and the strongest argument in the Democratic arsenal. It was, but two years ago, when Senate Majority Leader Mitch McConnell announced that he would leave Antonin Scalia’s seat unfilled until after the presidential election. As I argued then, McConnell’s argument was an easily-debunked, face-saving excuse that had no basis in precedent or Constitutional reasoning, but sounded better than “we don’t want Obama to replace Scalia with a moderate” (even though that was the real reason).
As such, I can understand the temptation Democrats have to throw this back in the face of Mitch McConnell (and to a lesser extent, Donald Trump) by legitimizing it and using it to keep the seat open. However, I think this is a foolish and short-sighted strategy for several reasons. First, the McConnell Rule probably referred to presidential elections, not midterms. It is absurd to think that presidents should only be able to make appointments in odd-numbered years.
Second, granting bipartisan legitimacy to the McConnell Rule ensures that it will be used again. The Democrats should make a statement by not legitimizing McConnell’s strategy. Again, McConnell completely invented this doctrine that presidents lose their ability to make Supreme Court appointments when they are lame-ducks. It is not constitutional, and the Democrats should not give in to that temptation. Relatedly, this only serves to make confirmation battles even more contentious, and we need to find a way to stop that.
Third, however wrong McConnell’s proclaimed reasons were for keeping the seat open, it is true that the Senate is an equal partner in the process of filling vacancies, and they were under no obligation to confirm Merrick Garland (hence, the “stolen seat” narrative is false). This time, however, Republicans control the White House and Senate, so they have no one to stop them this time.
Finally, keeping this seat open for the midterm elections is the most surefire way to ensure that the Republicans not only continue to control the Senate, but possibly expand their majority. In 2016, Antonin Scalia’s open seat was probably the biggest reason why mainstream Republicans held their noses and voted for Trump (aside from maybe outright hatred for Hillary Clinton). In 2018, the Democrats have all the momentum and history on their side, as long as they do not do something stupid. Energizing the Republican base by obstructing a nominee (if they somehow gain the power to do so) and/or trying to make the election about an open Court seat is about the most stupid thing they could possibly do. It might play well for the Democratic base in California, but the Democrats are on defense in North Dakota, Florida, Montana, West Virginia, Missouri, Indiana, and to a lesser extent, a few other Trump-won states (Ohio, Pennsylvania, Wisconsin, and Michigan). These seats are critical for the Democrats if they want a shot at taking back the Senate next year. They will lose one or more of these seats if they inadvertently give Republicans a reason to show up and vote in November. And if the Republicans pick up a few seats this year, it could be a while before the Democrats win back the Senate, again. Therefore, for both constitutional and strictly political reasons, I would advise Democrats to not use this line of reasoning.
Argument 2: “Trump is under investigation, and thus should not be allowed to name a replacement.”
This argument really grasps at straws that may not even be there. First, being under investigation (as Trump may or may not personally be) does not deprive a president of his rights or his constitutionally-granted powers. This argument might have more weight if Trump had actually been charged with something and was in the process of being impeached. But since that is not the case, it is a really bad idea that argue that merely being investigated somehow strips the president of enumerated powers.
Second, some have argued that it would be inappropriate for a president to put on the Court a justice who might have to judge him in the future. A mere glance at the Constitution, however, immediately debunks this- only the Chief Justice presides over impeachment proceedings, and so this appointment will have no effect on any trial that might happen for Trump. As for cases involving the president or those closest to him outside of impeachment, I would imagine that any justice put on the bench by Trump would recuse himself if the situation warranted it, out of deference to their personal honor (the nominees Trump is considering are not the least bit like the snakes in his cabinet and staff).
Argument 3: “Kennedy’s son gave Trump a loan once, so the circumstances of Kennedy’s retirement ought to be investigated!”
Again, this is really grasping at straws. Like every Supreme Court Justice, Kennedy has postponed retirement until he could have a member of his preferred party name his replacement. It has been common knowledge for years that Kennedy wanted a Republican to name his replacement, and he has one in Donald Trump. Sure, the personal connection between his son and Trump may have increased Kennedy’s trust in Trump, but there is no grand conspiracy, here; just a Supreme Court Justice doing what every other justice in recent memory has done- wait until he believes that a like-minded justice can succeed him, based on presidential and Congressional politics. That is what Sandra Day O’Connor, John Paul Stevens, and David Souter all did. It is what Antonin Scalia tried to do, and what Ruth Bader Ginsburg and Stephen Breyer are doing, right now.
Those are the three main arguments about why Trump and McConnell should not fill the seat, at this time. The most absurd response to it, however, has come from certain law professors, who argue that the Democrats should “pack the Court” with six new justices the next time they control the Senate and White House. This is, without a doubt, the worst idea I have ever heard for reforming the Court.
Why is it a bad idea? The answer is that the “Norm of Nine” is the only norm left in these confirmation battles, and it is the nucleus holding everything together. First of all, Court battles are mercifully rare- with nine seats that carry lifetime appointments, most presidents only get to name one or two justices to the Court, who then stay put for 25, 30, 35 years or so. So when these vacancies do happen, they are among the most vicious battles in our legislature. Everything a nominee has ever said, written, or done is scrutinized, taken out of context, and used to blast them. Now imagine having these battles take place constantly, due to Court packing. Politics is vicious enough without pouring an ocean of gasoline on the fires.
Second, this would tie the judiciary completely to partisan politics and elevate its importance beyond anything the Founders remotely envisioned. As Hamilton wrote in Federalist 78, "in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them... [the judiciary has] no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment." In other words, the Court was always supposed to be the weakest among equal branches.
As for appointments, the Founders made the Court (and the lower federal courts) independent of partisan whims and popular rule by having the executive nominate people to fill vacancies and having the Senate exercise advice and consent via the confirmation process. Neither the President, nor the members of the Senate at the time, were elected by popular decision. The President, of course, is elected via the Electoral College (which can elect whoever it wants, regardless of popular vote) and the Senate was elected through the state legislatures. Therefore, federal judges would be insulated from the passions of the masses. This Court-packing precedent, however, would make federal elections entirely about justices. Each side would be competing for the right to appoint as many ideologues as possible and it would dominate all electoral considerations. Supreme Court justices were never supposed to affect elections like that. When the Court first came into being, turnover was high, being a Court justice was not seen as a position of prestige, and they did not even have a building specifically devoted to the Court for the first century and a half of its existence. If Court packing happens, the judiciary will completely usurp the other two branches as the center of our constitutional republic.
Third, once one side packs the Court, it will spark a chain reaction that will never, ever stop. If the Democrats put six new justices on the Court, the Republicans will respond with 6 or more of their own the next time they gain power. And then the Democrats will pack it even more, and so on. Eventually, the Court would become completely unrecognizable. The Court functions as a small, close-knit, deliberative body of the greatest constitutional minds this country has to offer. If a court-packing war happens, it will operate more like Congress than like the Court. Conference deliberations, coalition building, and opinion writing will all change drastically (just imagine how long opinions will run if there are 500 concurrences and 400 dissents on every issue). These are, but a few, of the consequences that will inevitably happen if the Democrats decide to experiment with opening Pandora’s Box (again).
And who knows what else the violation of the Norm of Nine might encourage? My guess is that rampant impeachment of justices would be just around the corner. And why not? If the Senate can operate with bare majorities doing whatever they want to the Supreme Court, what would stop them from beginning to impeach justices they do not like, for no particular reason? Court packing would strip most vestiges of judicial independence away from the Court; arbitrary impeachments would destroy the rest.
I do not exaggerate when I compare this court-packing plan to opening Pandora’s Box. The Norm of Nine is the final safeguard against a perpetual judicial war that neither side will ever be willing to end. Every branch of the government will be forever altered if the Democrats decide to try and pack the Court. The presidency will be reduced to nothing more than appointing judges (admittedly, this is already something of a problem, as President Trump’s victory is due in no small part to Antonin Scalia’s open seat). The Senate will spend all of its time on nasty confirmation battles that never end, as each side tries to gain the upper hand on the Court. And the Court, itself, will both be elevated to a status it should never have gained, and yet also be twisted into something completely unrecognizable.