Court Packing

Noah Feldman and Neil Siegel on Court-Packing

Two prominent liberal constitutional law scholars warn against the dangers of court-packing.

|The Volokh Conspiracy |

The Supreme Court.

There is a debate on the left over whether the Democrats should try to "pack" the Supreme Court the next time they get the opportunity to do so. Support for court-packing within the Democratic Party is growing. But many liberals remain opposed to the idea, warning that it is likely to do more harm than good. Over the last few days, two leading left of center constitutional law scholars have written insightful pieces highlighting some of the dangers of court-packing: Noah Feldman (Harvard) and Neil Siegel (Duke). Both works make good points.

One of the most important is the way they address the standard liberal rationale for resorting to court-packing: the idea that it is a justifiable response to the Republican-controlled Senate's refusal to hold hearings or a vote on President Obama's Supreme Court nominee, Merrick Garland in 2016. Both point out that court-packing would not be a proportionate response, but a major escalation in the conflict. Here's Siegel on that issue:

I agree that Senate Republicans behaved very badly by, among other things, refusing even to consider President Obama's nomination of Chief Judge Merrick Garland, who was supremely qualified, experienced, and ideologically moderate. But there are difficult line-drawing problems here. For example, if the full Senate had voted Garland down on the merits as insufficiently conservative (a deeply unfortunate but not norm-defying outcome, in my view), we would presumably have the same Court we have now, and yet Court-packing would not seem a justifiable response.

In addition, and moving from the question of whether Court-packing is justified in response to flagrant norm violations by the Republicans to whether Court-packing would be wise, the Democrats can at some point retaliate in tit-for-tat fashion for the mistreatment of Garland by refusing to consider a Republican Supreme Court nominee. (And, by the way, I would not limit such retaliation to the last year of a Republican President's term, which is a distinction without a relevant difference.) Proportionality is important to prevent conflict escalation and so to avoid fueling a race to the bottom.

And Feldman:

The proportionate response would be for Democrats to refuse to confirm a Republican president's nominee when they control the Senate.

Democrats would then effectively be saying that Republicans have changed the background rules of confirmation. It would follow, that we might get an incredible shrinking Supreme Court, with nominees added only when the president and the Senate majority come from the same party. There are reasons to think that's a bad idea; but in any case it would be a state of affairs that followed logically from the Republican decision to block Garland.

A proportionate response is a tit-for-tat strategy: Whatever you do to me, I do back to you. Such a strategy can help reestablish equilibrium when it is in danger of being permanently broken.

In contrast, packing the court would be a disproportionate response to the Garland affair. Instead of doing what the Republicans did, Democrats would be raising the stakes by transforming the balance of the court in one fell swoop, rather than one justice is a time.

That in turn would invite Republicans to retaliate by doing the same thing. Instead of a shrinking Supreme Court, the result could be a vastly expanded Supreme Court, one that gets new members each time the president and Senate come from the same party.

That would be unsustainable. Not only could the court grow to an unmanageable size; its rulings could zigzag from one ideological extreme to the other.

A zigzagging court, deciding every case on ideological grounds, is the antithesis of the rule of law. Decisions must produce at least some degree of settled expectations for them to contribute to governance by law rather than by judicial fiat.

Siegel is also right to point out that the GOP's refusal to hold hearings on Garland differed only in degree from voting him down and doing the same to any other Obama nominee the Republicans considered too liberal. I would add that it was also little different from what then-Senator Barack Obama and many other Democrats unsuccessfully tried to do in 2006 with the nomination of Samuel Alito: prevent a vote from occurring by using the filibuster (a move Obama later said he regretted). A filibuster prevents nominees from coming to a vote no less than the GOP's 2016 strategy did. Republicans also argued (plausibly, in my view) that their 2016 strategy was a proportionate response to Democrats' use of similar tactics against lower-court nominees, and statements suggesting they would do the same thing if a GOP president had the opportunity to name a justice late in his term.

In fairness, Obama's 2006 strategy did permit hearings on Alito's nomination, even as he sought to block a vote. Majority Leader Mitch McConnell's 2016 tactics did not even allow hearings. But I suspect Democrats would have been only slightly less angry if McConnell had permitted hearings on Garland, but blocked a vote.

None of this necessarily proves that the GOP's refusal to vote on Garland was justified. But it does indicate that any norm against blocking nominees was far less clear than that against court-packing, which both parties had previoulsy adhered to for many decades.

Feldman and Siegel also emphasize the institutional damage that court-packing would do, which goes far beyond anything that has happened in the last several decades of judicial nomination wars. Here, I think they actually underrate the risk somewhat. The problem is not just that the Court would "zigzag" (Feldman) or see its legitimacy damaged (Siegel), but that the institution of judicial review would be severely undermined by the rendering the Supreme Court subservient to whichever party manages to control the presidency and Congress simultaneously. It is no accident that court-packing is a standard tool of authoritarian populists seeking to undermine liberal democracy, recently used in such countries as Hungary, Turkey, and Venezuela. Would-be authoritarians know that independent courts are an obstacle to their illiberal measures, and that court-packing is an effective way to neuter them.

The problem is unlikely to be limited to the Supreme Court, as similar strategies could be used to pack the lower courts, as well. Indeed, the current round of debates over court-packing arguably began in 2017 when prominent conservative legal scholar Steve Calabresi and his coauthor Shams Hirji proposed a plan for Republicans to do just that. I opposed that plan for much the same reasons as I now object to Democratic court-packing proposals. But if the Supreme Court gets packed, both parties are likely to revive versions of the Calabresi-Hirji plan to do the same for other federal courts.

Rejecting court-packing does not mean that Democrats (or anyone else) should necessarily reject all proposals for reforming the Supreme Court. I have previously pointed out that such reform proposals as limiting justices to 18-year terms do not pose the same sorts of risks. Similarly, it would be reasonable for Democrats to seek some concession in exchange for supporting a constitutional amendment limiting the size of the Court, and thereby permanently eliminating the risk of packing. I suggested one possible deal of that sort here. Current GOP proposals for an anti-court packing amendment are unlikely to succeed without some such agreement.

I don't agree with every point that Siegel and Feldman make. For example, unlike Siegel, I am skeptical that using the threat of court-packing is a relatively safe idea even if those who make the threat have no intention of actually carrying it out. Like court-packing itself, the threat of doing it is a game both parties can play, if it turns out to be effective. Over time, effective threats can also undermine judicial independence. Moreover, it is difficult to make such a threat effectively without actually being prepared to carry it out, should the justices refuse to give in to the president who makes it. A credible threat would require the president to mobilize his or her party's base in favor of court-packing, thereby creating strong expectations that the threat would be carried out if the justices continue to make rulings the president's party finds highly objectionable.

Regardless of such quibbles, Feldman and Siegel have made valuable contributions to the court-packing debate. Anyone interested in the issue should make sure to read them!

UPDATE: I should perhaps note that Feldman and Siegel are not the only liberal critics of court-packing. I noted several others here, including Laurence Tribe and former Obama White House Counsel Bob Bauer.

Advertisement

NEXT: You Can't Shut Down Space

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “flagrant norm violations by the Republicans”?

    Oh, God, please help me, I’m laughing so hard I’m peeing myself!

    1. Me, too!

    2. Someone forgot that Harry Reid and the then Democrat controlled senate packed the lower courts with Obama nominees after eliminating the filibuster for executive and judicial nominees (apart from S.Ct. nominees).

      1. That’s totally different, MKE. As was the D refusal to give Miguel Estrada a hearing. Totally different. Totally. Like totally.

  2. It gets really tiresome, reading and re-reading the same arguments that I first encountered back in law school. If “legal scholars” can’t manage to adduce new, relevant arguments suitable to our present circumstances, they should keep quiet.

    None of the highly speculative nonsense here takes into account the institutional damage that not court-packing will do, given the current Court’s propensity to constitutionalize conservative policy and the likelihood that it will diverge significantly, in the coming decades, from popular opinion. A zigzagging Court may be a problem, but so too is a Court that endorses abortion restrictions effectively amounting to bans; all but outlaws unions; restricts the ability of states to regulate partisan gerrymandering; expands the power of courts to overrule regulatory policymaking; and so on, to list just a few of the prerogatives and likely outcomes of an increasingly conservative court over the next couple of decades.

    The Court will, in other words, increasingly restrict the ability of American citizens to govern themselves and structurally favor a conservative minority, empowering them to set policy and further shift the balance of power for generations to come. This is the imminent threat to the legitimacy of the courts, and it is one that “legal scholars” rehearsing the same exact arguments handed down to them, on court-packing, are manifestly blind to.

    1. This illustrates the problem quite well. The Supreme Court currently has a “conservative” majority, but two of the five conservatives are cautious center-right politicians before they are judges, and are way too scared of a political and media backlash to do anything that might frighten any liberal horses. Whereas the number of judges who toss and turn in ther beds worrying that right wing horses might get frightened is zero.

      So, from a purely political point of view, the current court is about as squishily centrist as its possible to get. A court with Garland, say, as the swing voter would be ploughing ahead with liberal causes quite merrily.

      1. What’s the most terrifying – to liberals – thing we can imagine the court doing in its current term ?

        Undoubtedly it would be failing to endorse the novel liberal idea that the Court should stamp down on political gerrymandering. Well, political gerrymandering may be disreputable, but it has been going on for a very long time and if the Court fails to stamp it out, that just means that we continue to bumble on as we were. Hardly a radical conservative counter-revolution. And it’s probably only 60-40 that they do decide to do nothing. So the real problem we have is liberal vapors about what is in reality a centrist, cautious Supreme Court. Of course if Ginsburg subsides, and Kagan encounters a piece of bad fish, then things could change, and it might be time for liberals to panic.

        But if you use up “Wolf !” on a dachshund, you’ll have nothing left for when a real wolf arrives.

        1. There is nothing wrong with “gerrymandering” when it comes to popular representation. Political boundary lines are drawn for a variety of reasons including geography, resources, population concentration, and many more. Just as some districts are drawn to be minority-majority (which is a type of gerrymandering that liberals seem to like) and the same to group citizens of big metro areas into the same districts (again, one liberals like to support). The same is done to group people of similar values who might say reside in similar economic conditions, etc.

        2. The Court could, and should, set some outer limits on the extent to which legislators should be allowed to pick their constituents through gerrymandering. But the risk, in my view, is not that the Court continues its longstanding “hands-off” approach to political gerrymandering – which is simply the status quo – but that it concludes that solutions to prevent overly politicized gerrymandering that cut the legislature out of the equation (e.g., redistricting commissions that are evenly balanced between the parties) are themselves unconstitutional. Those cases are not yet before the Court, but they will arrive there soon.

          1. solutions to prevent overly politicized gerrymandering that cut the legislature out of the equation (e.g., redistricting commissions that are evenly balanced between the parties) are themselves unconstitutional

            Well, in respect of elections for which the federal Constitution assigns responsibility to the State Legislature (Congress and Presidential Electors) redistricting commissions are plainly unconstitutional. Unless :

            (a) the State Legislature itself provides for a redistricting commission, or
            (b) in respect of Congressional elections, the US Congress provides for redistricting commissions

            Whether redistricting commissions are a good idea or not – I tend to think not – is irrelevant to the legal questions. A Judge who imagines its his job to rule on the merits of the policy does not belong on any court, never mind SCOTUS.

            1. But returning to the subject of how awful and terrifying this “conservative” Supreme Court is – the precedent on the Arizona Redistricting Commission, which you fear might be overturned has been sustaining the democratic sinews of the Republic for…..rather less than four years.

              As uprootings of ancient norms go, even if it happens, it’s not very uprooty . (Which I suspect it won’t because if it’s relitigated Roberts will do a 180 from his 2015 dissent and quote stare decisis.)

              Whereas if “moderate” Judge Garland had made it onto the court, it is absolutely inconceivable that he would have gone with stare decisis on say, a second go at Heller or Citizens United.

    2. And when I finally stopped laughing from the original post, this idiotic comment appears! God, this post is just pure comedy gold!

      1. I would worry if I said anything you would actually approve of.

        1. “I would worry if I said anything you would actually approve of.”

          Since I only approve of comments which reflect at least a modicum of rational thought, I would say that you have nothing to worry about.

    3. SimonP errs in a fundamental claim, the the Supreme Court would “constitutionalize conservative values.” In each and every one of the issues he raised, the conservative proposal is to decline to constitutionalize liberal values, letting the states and the people decide what to do about these issues themselves. If, as SimonP claims, the public endorses liberal positions on these issues, they can simply vote them into law.

      Indeed, SimonP’s abject refusal to recognize this distinction – his equating a decision not to constitutionalize liberal values (saying “this isn’t the judiciary’s business”) with constitutionalizing conservative values – represents a huge part of the problem.

      1. I did not say that the Court was constitutionalizing conservative values. I said it was constitutionalizing conservative policy. There’s an important distinction there.

        It’s one thing for the Court to issue a holding that merely permits voters and legislators to act within a slightly larger or smaller scope of power. It’s quite another for the Court to conclude that the Constitution itself flatly prohibits things like campaign finance reform, organized labor, or non-partisan district-drawing commissions, which is exactly where the Court is currently heading. Increasingly, its holdings are less about expanding liberty or constraining government overreach and more about selecting particular legislative solutions to modern-day problems and telling the people, “No.”

        1. It’s quite another for the Court to conclude that the Constitution itself flatly prohibits things like campaign finance reform, organized labor, or non-partisan district-drawing commissions, which is exactly where the Court is currently heading

          Can you point me to any conservative “policy” that the USSC has ruled in favor of, that puts any of the above things out of reach? Because I certainly can’t think of any.

        2. I’ll second I Callahan’s request.

          How, for example, is the S.C. going to ‘flatly prohibit organized labor’? What would that look like? It’s going to say ‘freedom of association rights don’t apply to employees, and employees are constitutionally forbidden from quitting in unison if they don’t like the job’?

          What about abortion rights? Are you expecting the court to compel unwilling states to criminalize abortion?

          I’d also like to hear what you mean by ‘flatly prohibit campaign finance reform’. If a ‘campaign finance reform’ law says ‘no one may spend money to criticize incumbent officeholders’ then, sure, the court should flatly prohibit that. If you’re talking about Citizen’s United, I think your argument is lacking nuance, shall we say.

          1. Indeed. Requiring a public employee to join a union or contribute to its coffers as a condition of employment denies any “right of free association” in and of itself.

            The right not to associate with a union surely is as strong as the right to associate with one – just as the right to decline to engage in religious activities surely is at least as strong as the right to to engage in religious activities.

        3. Are you arguing that holding that an employee has a right to not join a government union is tantamount to banning unions?

        4. “It’s quite another for the Court to conclude that the Constitution itself flatly prohibits things like campaign finance reform,”

          The problem is that the left’s current conception of “campaign finance reform” really is just an end run around the 1st amendment, an attempt to effectively prohibit disfavored speech, just using money as a hook to do it.

          I mean, CU, which elicited such outrage on the left? They were a non-profit who were just trying to advertise a movie critical of Hillary. Classic political speech. And it wasn’t any accident that the administration’s counsel stated to the Court that they could ban a book, if it came to it.

          There are a lot of conceptions of “campaign finance reform” that would encounter no problems with a Court that was 9-0 conservative. The problem is that the left isn’t excited about any of them. They’ve focused like a laser on the forms of “campaign finance reform” that involve censorship of or retaliation for political speech.

      2. I had a fairly long-winded reply but ReaderY said it better (and much shorter). With the possible exception of abortion (which has been the subject of Republican rhetoric for decades but nevertheless has failed to result in any real change), SimonP’s “parade of horribles” are of increases in personal freedoms that make us more able to govern ourselves and less threatened that we will be “governed” by authoritarian thugs.

    4. I don’t believe that you went to law school. It would be hard for someone with a legal education to argue that not constitutionalizing abortion or gerrymandering constitutes “restricting the ability of American citizens to govern themselves,” or to think that the Court can “outlaw unions.”

      1. I don’t know whether he went to law school or not, but I should have thought that the heart and soul of a legal education is to learn how to argue complete nonsense with elegant sophistry and shameless aplomb. That and learning how to use billing software.

    5. given the current Court’s propensity to constitutionalize conservative policy and the likelihood that it will diverge significantly

      That is already in the Constitution — the winner gets to set justices. Insofar as it makes the court political, well, the left had no problem dominating it for decades.

      Many of the rulings are political ones that cannot be achieved through the vote, making the court a shadow legislature, and only slowly responsive to voters.

      None of this is really good. If the court were limited to rights for the people, I would prefer Democratic nominees. Since those nominees are prone to increase government power and intrusiveness, too, without amendment, they are a danger to long-term freedom just as surely as a Republican one on social issues.

      You are all terrible bumblers playing with fire in the long run for immediate gains now.

    6. Is this sarcasm? “The judicial system is not producing the results we want, so it must be destroyed.”

      A zigzagging Court may be a problem, but so too is a Court that endorses abortion restrictions effectively amounting to bans

      Yeah, this has to be sarcasm. “A court that does not function is almost as bad as a court that declines to uphold abortion on demand.”

      it will diverge significantly, in the coming decades, from popular opinion.

      If popular opinion supports, for example, abortion, then laws banning abortion won’t get passed and there will be nothing for the courts to rule on.

      The Court will, in other words, increasingly restrict the ability of American citizens to govern themselves

      Which, remember, is its job

      This is the imminent threat to the legitimacy of the courts

      The “legitimacy” of the courts does not depend on bowing to the majority will ? even if a liberal majority ever does arise.

  3. the institutional damage that not court-packing will do, given the current Court’s propensity to constitutionalize conservative policy

    Congratulations! You are the new poster child for partisan blinders.

  4. “[S]hift the balance of power for generations to come” probably the last best hope for “America.”

  5. I have to say that if I were one of the five “conservative” Justices, as and when a D President and Senate come round again, I’d be way more worried about court unpacking than court packing,

    1. Why? Short of enough votes to impeach you, how are you going to be removed? Assassination?

      1. Obviously. Do you think the USA is running out of politically motivated nuts, happy to have a go at assassination ? Steve Scalise would beg to differ. Once some of these nuts realise that a Supreme Court judge is a very powerful politician, I wouldn’t bet against someone having a pot shot.

        Of course, being a nut, the nut might :

        (a) fail to realise which Justices were on which side, or
        (b) have a go before a D President and D Senate were in place, having failed to think the thing through

        or, being a liberal

        (c) miss

        I’m half joking. But also half not. I wouldn’t be surprised by an assassinatin attempt on a SCOTUS Justice.

        1. I would, so long as Trump is in a position to nominate the replacement.

          1. see (b) above.

      2. Here’s an interesting legal question. “Impeachment” would require a 2/3 majority in the Senate. But what if the number of Supreme Court Justices was just lowered to 8 (or 7) by Act of Congress. What would happen?

        1. SInce judges, inc Supreme Court ones, serve “during good behavior” (and while alive – SCOTUS having actually found the time to rule on that detail recently) and since SCOTUS judges are specifically appointed to SCOTUS, any law that purported to get rid of one or two would be unconstitutional. But there wouldn’t be anything unconstitutional about Congress reducing the size of the Court to 7 or 8, so long as no sitting Justice had to retire.

          A non lunatic Congress writing such a law would obviously make it explicit that the reduced size applied only after attrition had culled the justices down to the requisite number – why take a chance on a court shooting down your whole law because you’d left that hanging ? But it’s really hard to think of when a Congress would find it politically advantageous to pass such a law. Usually it’s gonna make more political sense just to have one of your guys nominated and confirmed. If you’ve got the votes to change the law, you’ve got the votes to confirm a judge. I suppose if you have 4 Justices on your side aged 45-50 and the other side has 5, aged 80-90, and no vacancies, then maybe.

          1. You are correct, with the good behavior clause. What I’d missed is that the good behavior clause was set by the Constitution, rather than the Judicial acts. That’s actually an important distinction.

            So, if a given Congress was so inclined to attempt to remove a few current Justices, but didn’t have the 2/3rds majority in the Senate for impeachment, how might they go about it?

            Could they attempt to “redefine” good behavior? Constitutionally iffy.

            1. There has been talk about keeping some of the justices only nominally on the Supreme court, but reorganizing the Court in such a way that only a chosen subset of the Justices would have any real work. I don’t think it’s going anywhere, though.

          2. This is not an unprecedented hypothetical.

            Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no vacancy in the office of associate justice of the supreme court shall be filled by appointment until the number of associate justices shall be reduced to six; and thereafter the said supreme court shall consist of a chief justice of the United States and six associate justices, any four of whom shall be a quorum; and the said court shall hold one term annually at the seat of government, and such adjourned or special terms as it may find necessary for the despatch of business.
            Judicial Circuits Act (1866)

            1. A quick internet search reveals that this reduction does seem to have been a nakedly political attempt by the Republican Congress, with veto proff majorities, to prevent the wicked Andrew Johnson from filling SCOTUS seats. But it isn’t obvious why they didn’t just go the simpler route of declining to confirm his nominees. It wasn’t as if there was no precedent for rejecting Presidential nominees to the court, they seem to have doe it quite frequently.

              1. Since Congress did not sit continuously back then, could it have been an attempt to preempt recess appointments? Today, we would not consider judges to be eligible for recess appointments but was that settled back then?

                1. Eisenhower made a couple of recess SCOTUS appointments, and Geoge Washington made one too. So it’s never been a no-no. Maybe you’re right and they were trying to dodge a recess appointment. They certainly had real recesses back then.

  6. “Senator Barack Obama and many other Democrats unsuccessfully tried to do in 2006 with the nomination of Samuel Alito: prevent a vote from occurring by using the filibuster (a move Obama later said he regretted)”

    Which he only regretted because it did work.

    1. Liberals only regret dirty tricks when they don’t work. Biden would have joyfully reminisced about Anita Hill if that one would have scuttled Thomas.

      1. Indeed. Not a one seems to regret Borking

        1. Bork maybe did.

        2. You shouldn’t regret it either. Bork was no champion of liberty.

          1. Liberals should regret it – Kavanaugh is sitting in Kennedy’s seat, which might have been Bork’s. And Bork died in 2012 when Obama and a D majority Senate could have replaced him. If Bork hadn’t been borked, the libs would have a Supreme Court majority now.

            1. Well, we liberals are highly talented, but we do lack the ability to foresee who will be President when someone dies.

              My point about Bork really is that all the business about borking and how unfair it all was is more right-wing myth than reality. Bork was a poor choice – an extremist with some strange views.

              Griswold seems to have sent into a rage, and then there is this:

              Constitutional protection should be accorded
              only to speech that is explictly political. There is no basis for judicial
              intervention to protect any other form of expression, be it scientific,
              literary or that variety of expression we call obscene or pornographic.

  7. It’s called “enlargement” or “expansion.” Check the coverage of Republicans’ recent enlargement of the Arizona Supreme Court.

    I also encourage Democratic leaders to devote just as much attention to opponents of Supreme Court enlargement as Mitch McConnell did to proponents of the Garland nomination, the blue slip system, and the standard timetable for considering federal judicial nominations.

    If conservatives want to keep control of the Supreme Court, they should focus on winning elections. Against a tide of an electorate that becomes less interested in the Republican Party essentially every day, that could be tough, so perhaps they should pray on it.

    1. Tell me more about why you want an authoritarian regime…

      1. What makes you figure I would want statist womb management,

        or restrictionist, cruel, bigoted immigration policies,

        or dopey tariffs,

        or torture,

        or voter suppression,

        or big-government micromanagement of ladyparts clinics,

        or bloated military budgets,

        or a trade war,

        or executions by government agents,

        or more government imposition of religion in public affairs,

        or similar authoritarian measures?

        1. “what makes you think….”

          Your past comment history and implications thereof.

          Really, it looks like a textbook example of following the Chavez – Maduro playbook.

  8. Think the problem here is that the court, as a primarily political institution, is very poorly designed.

    Nobody who views it that way, as I do, would set it up with lifetime tenure and appointments at random times. I suppose the framers didn’t see it that way – one of many things they failed to foresee.

    I think the frequent suggestion of 18-year terms is sensible, but I don’t think a larger court would be terrible either. Maybe you could have two appointments each four-year Presidential term, with the size of the court possibly changing by one or two as a result of deaths or retirements. Using panels would let the court take on more cases.

    1. I agree with you on the 18 year rule. Makes no sense to have them hanging on deep into their eighties. Nor does it make any sense having folk hunt around for promising 45 year olds, in preference to experienced 55 year olds, just because they’ll keep the spot warm for longer.

      1. I also think it would begged to give each President two appointments per term, make a vote in the Senate mandatory after some period, and require, say, a 2/3 vote to confirm.

        Remember, my thinking is that the court is mostly a political institution, so let’s make it somewhat representative, but not completely partisan.

        1. Only one of the last five R nominated Justices, who were confirmed, got a 2/3 vote. Three of the last four D nominated ones got 2/3, but two were from the judicial wars stone age – the 1990s. Soto (68) and Kagan (63) were confirmed when the Ds had 59 or 60 Senators, so there weren’t too many crossover votes.

          So your 2/3 vote rule seems likely to leave us with Gorsuch on his own by 2045 or so.

          Although I greatly prefer R appointed judges to D appointed ones, and a higher threshold would probably benefit the Rs because of their natural advantage in the Senate, I think 50+1 should be good enough to confirm.

          1. So make it a 3/5 rule.

            That basically reinstates the filibuster, but with two improvements:

            1. It’s a rule that can’t be changed for convenience.

            2. The Senate has to have an actual vote, so Senators go on the record and are accountable.

            1. More realistic in getting the seats filled, but not at all good for liberals. If you look at 538 “partisan lean” figures for States, you will see that 31 States lean R and 19 lean D. So broadly, if the national vote is dead even, the Rs should win in 31 States and the Ds in 19. Now Senate elections are decided by all sorts of factors, and the national vote is not always shared equally, and candidate quality matters, and so on. But that partisan lean means that the “par” score for the Senate is 62R-38D.

              So a 60D Senate (even though we had one briefly recently) is much less likely than a 60R Senate. If Senate confirmation depends on 51 votes, the Ds will get there reasonably often when they have a D President nominating. They’ll do less well than the Rs, but still do OK. But if they have to get to 60 they’ll virtually never fill a seat. Whereas the Rs would expect to be at 60 pretty much half the time.

              Assuming a roughly even national vote averaged over time, and the absence of a yuuuuge outbreak of cross party co-operation.

              1. Currently, the Senate is 53R-47D. But that’s with the benefit of quite a strong wind of temporary, legacy, incumbent advantages for the Ds.

                The Ds hold 3 seats in strongly Red States*. The Rs hold zero seats in strongly Blue States. In “close” seats ? with a partisan lean of 10% or less – it’s 20D-12R.

                Even that up to 0-0 and 16-16 and you’re looking at ??60R-40D.

                * and they’ve been losing Red States in the Senate steadily as we all get more partisan, including Indiana and Missouri in the most recent cycle, and only hanging on to Montana and West Virginia by their fingernails with good incumbents and an 8% national margin.

                1. That of course is due to the major flaw in the Senate, that the seats are – to be blunt – assigned arbitrarily, according to mostly arbitrary state boundaries. The problems that creates go far beyond judicial nominations.

                  (Yes, I know. A union of sovereign states, blah, blah blah. But the fact is that few of the states ever enjoyed any real sovereignty, and most are actually creations of the federal government, and not the other way around.)

                  It is certainly plausible that the Senate will become more consistently Republican, but if that happens, and the Republican majority continues to represent a shrinking portion of the population, it will not be a good thing for the country. Having the policies preferred by the majority consistently foiled by an unrepresentative legislature is not a recipe for national tranquillity and democratic stability.

                  I know there are many here who gloat over that, and take a “f*** you” attitude, but that won’t prevent problems.

                  1. It is certainly plausible that the Senate will become more consistently Republican, but if that happens, and the Republican majority continues to represent a shrinking portion of the population, it will not be a good thing for the country.

                    I would agree. Politics stands as a substitute for the other means of conducting society’s business – civil war. Each side needs, however grudgingly and reluctantly, be sufficiently content with the rules and the outcomes, to prefer to use the substitute rather than the substituted. Obviously each side contains ferocious partisans who resent surrendering power to the other side, ever. But one hopes that there’s a large enough chunk on each side who prefer politics, even if they lose from time to time, to civil war.

                    Consequently, when setting the rules, one should try to arrange things so that the moderates on each side don’t get too resentful. A 60 vote hurdle for judicial confirmations – which we had until five and a half years ago – works fine if each side is willing to let the other side have their folk confirmed most of the time, But that norm has broken down. It would not be wise to reinstate the 60 vote rule until each side has decided to calm down a bit.

    2. With 18 year staggered terms, when a Justice resigns, is impeached, or dies the replacement should require full Senate confirmation and only serve the remainder of the term for the vacated seat and be ineligible to be nominated for another term for four years after the end of the term they were confirmed for (even if they resign, or are impeached before the end of that term).

      A modest enlargement might make sense (possibly with appropriate adjustments to length of terms) to keep the court from shrinking too much when the Senate and President can’t agree for four to six years and some Justices also retire or die during that time.

      Perhaps the next confirmed Justice always takes the remainder of the term of the seat with the shortest remaining time in its term (although, there may be some gaming opportunities here that could cause problems — I need to think about this more).

      If the court gets “too small”, perhaps the threshold for confirmation for the seat(s) with the shortest remaining term would decay based on how deficient the court is on its “minimum” size. Perhaps only a bare majority would be required, for example, if the court (including confirmed but not yet sworn in) drops below 2/3 of its maximum size.

      Also, when an even number of justices decide on a case and only 1/2 of the Justices agree on a resolution to a question, perhaps the vote of the most recently appointed member of the court is ignored.

  9. Part of the difficulty is the “apres moi led deluge.” We are dealing with people who simply don’t care about whether the Republic will have a future or not. Indeed, we are to some extent dealing with people, on both sides, who actively don’t want it to continue to exist unless they can get their way.

    One is reminded of the Compromise of 1850, when abolitionists were willing to compromise on slavery rather than see the republic destroyed. Who today would dare express such priorities, would even be willing to admit they think the survival of the republic more important than the hot political issue of the hour? And without such priorities, we get civil war or, perhaps as bad or worse, nominal peace but government so paralyzed by dissension it is incapable of acting in the national interest, and vulnerable to every intrigue and opportunist.

    1. I’d say “apres moi led deluge” aptly characterizes Republican attitudes toward environmental issues, especially climate change.

      Yeah, yeah. Cue the denialist Internet climate experts.

      1. Dude….there is no such thing as climate change.

        1. OK. You’re stupid and gullible.

          Chinese hoax, is it?

          1. It is not. But nor is its use by one faction as argument for massive control over the economy, which is unnecessary.

      2. Assuming, for the sake of argument, that anthropogenic climate change is (a) real (b) serious and (c) remediabe, “apres moi led deluge” is still likely to be the wisest policy.

        Another hundred years of economic growth and another hundred years of scientific advance is likely to put our descendants in a much better position to deal with an actual deluge, than we are to deal with the threat of one.

    2. I’d say “apres moi led deluge” aptly characterizes Republican attitudes toward environmental issues, especially climate change.

      Yeah, yeah. Cue the denialist Internet climate experts.

      1. Climate has been changing for millions of years, with and without CO2

  10. The problem is that the court has become a third political branch and it was never intended to be so. If a constitutional question will policy implications was confronted by the court it was meant to be far and few between. Hence why for the first 100 years of our Republic the Court made about half a dozen such decisions.

    Now all sides of the political spectrum try to drive their policy decisions, in part, through the courts. Almost all of these were devised to be resolved by the political branches and not unelected, unanswerable, life long appointed politicians (judges).

    The only real “fix” for the Court is to scale it back to the constitutional place for which is was envisioned. Until that happens the parties will play political football with it in some manner.

    And if the Supreme Court is to remain a political institution I would far prefer to see it managed in a manner much like the House of Lords. The Senate could have a “Law Committee” which would function much like the Supreme Court. Constitutional questions could be answered in the first instance by that committee, but would have to be adopted by a majority vote of the Senate and could be overruled by a 2/3 vote of the House.

  11. I love how Republicans are always accused of violating “norms” or behaving “poorly” by political pundits, but they also seem to fail to scold the Democrats for doing just the same.

    If the situation were completely flopped, and say Trump had appointed a Supreme Court pick in his last year as President and the Dems held the Senate, there is no way in Hades that the Dems would have voted on that nominee. None what so ever.

    Similarly, the press never seems to call out Dem bad behavior such as you know ginning up sexual assault charges against Thomas or Kavanaugh. Instead they frame these accusations as “legitimate questions” even when supporting evidence is almost non-existent.

    And lets not even talk about violating democratic norms by accusing a sitting President of being in collusion with a foreign power to “steal” an election AND then to top it off by being sad that an American President actually didn’t commit treason to steal an election. If anything violates the “norms” of democratic decency that has to be #1.

  12. They should pass a law that all Presidential nominees get a hearing within 90 (or 120) days. I don’t think it would have to be a Constitutional amendment.

    1. The problem is who is going to enforce such a law? The courts could order it, in theory, if they didn’t punt it as a political question, but if the Senate just ignores the Courts is the executive really going to have them all arrested?

    2. U.S. Constitution, Article I, Section 5, Clause 2: “Each House may determine the Rules of its Proceedings, . . . ”

      I realize that it isn’t fashionable for so-called “progressives” to actually read the Constitution, but try not to look stupid when you propose a law that is completely unenforceable to fix a non-existent problem.

      1. Sure, you could do that, but since no Congress can bind a future one, the rule could be changed again the moment it was found inconvenient.

        1. Hmmm. If there was an actual law that the Senate had to process any nominee within 90 days, the question is whether a future Senate could ignore it successfully, rather than having to repeal the law with the assistance of a future House and President. I’m inclined to believe that the Senate could ignore such a law.

          I suppose a question would arise if :

          (a) such a law was passed, including a provision that if the Senate took no action on a nominee within a time limit, it was to be presumed that they had consented
          (b) a future Senate ignored a nominee

          and a case arose on whether the nominee had been consented to by the Senate. I could see that going either way, since the Senate hasn’t bothered to expressly repudiate the law purporting to deem its consent and therefore might be presumed to have ignored the nomination knowing and intending that its consent would be presumed. But more probable, I would think, a law purporting to instruct either House as to its procedures would be ruled unconstitutional on its face.

    3. Why is this a problem now ?

      The Senate has been happily ignoring Presidential nominees since pretty much forever.

    4. Just have nominations expire after 90 “in-session” days Senate since the nomination was presented and prohibit a nominee from being nominated again before the end of the current term of the Senate in which they were nominated.

      Thus, “doing nothing” means the Senate decided the nominee wasn’t worth their time and forces the President to nominate another candidate or take responsibility for leaving the seat empty.

  13. Dear Ilya,

    Answer me this. Why should Democrats get a “concession” for agreeing not to expand the Supreme Court? It is only because they are making the threats?

    Keep in mind, in the past 5 administrations, each administration has nominated and approved TWO Supreme court justices. Trump got 2 (so far). Obama got 2. George W got 2. Clinton got 2. George H.W got 2.

    It’s actually impressive. So, why should Democrats have gotten “Three” for Obama. And since they didn’t they deserve a “concession” for agreeing not to pack the court?

    Can’t the GOP just as easily make the threat?

    1. Conservatives can make all the threats they wish. They’re going to be replaced anyway.

      1. And yet you refuse to answer my question. Who will pay the bills when we’re gone?

        1. Educated, accomplished, skilled Americans residing in modern, successful communities — the liberal-libertarian alliance.

          1. You mean single non-white women and their six illegitimate crotch droppings. They’re gonna pay the bills?

      2. Lenin and Stalin had the same thought process.

  14. The thing to remember is that the left has no principles beyond destroying America. Anything that furthers that aim is a good thing. For example, they don’t care about homosexuals at all, but they use them as tools to weaken traditional morality and destroy the nuclear family.

  15. Let’s put some real historical context and the true point of the start of the sinking of the judicial nomination process into a cesspool of deceit, hypocrisy, and chicanery. The senatorial delays for Garland are schoolboy games compared to the Democratic litany. Senator Ted Kennedy, July 1, 1987, and his speech on the Senate floor that led to the guttersnipe hysteria surrounding the nomination of Robert Bork. The political machinations, public relations opposition research and politicization of this nomination were so bad that it created a verb, “Borking” a nominee. NO actions by any Republican can come close to the deceptive disingenuous conduct of the Democrats around Bork, Kavanaugh, and Thomas. There is no level of intellectual dishonesty that some democrat advocacy groups will not stoop to fundraise and discredit qualified people on the basis of what they think or believe. This all started with Senator Kennedy.

    1. Bork was a terrible nominee, who did not deserve to be on the Court. He was an extremist with bizarre views of, among other things, the First Amendment, which he thought protected only political speech.

      And Kennedy’s speech was pretty accurate.

      It’s time for the right to abandon the whole “Bork as martyr” idea, and face the fact that he was a nut case.

      A nut case who, by the way, got a hearing and a vote.

      1. Oh, almost forgot.

        Both Thomas and Kavanaugh likely committed perjury during their hearings, Kavanaugh multiple times.

        Save your tears for someone who deserves them.

        1. Both Thomas and Kavanaugh likely committed perjury during their hearings, Kavanaugh multiple times.

          ev?i?dence
          /?ev?d?ns/
          noun
          1.
          the available body of facts or information indicating whether a belief or proposition is true or valid.

      2. Bork was a terrible nominee, who did not deserve to be on the Court. He was an extremist with bizarre views of, among other things, the First Amendment, which he thought protected only political speech.

        I mean, one can certainly disagree with Bork on that point, but that position is far less extremist and bizarre than the modern progressive one that says that the First Amendment protects everything except political speech.

        1. Are you conflating campaign finance with speech?

          1. No, we’re refusing to pretend that it isn’t censorship if you regulate spending money on getting speech heard.

            Look, if you ban spending money to buy ink and paper to publish on a certain topic, you’re violating freedom of the press even if you are “only” regulating money. It’s the fact that the regulation hinges on the content of what’s spoken or published that renders it a 1st amendment violation.

            1. I know your position, Brett.

              We’ve gone over how your cries that there can be no line drawing is not borne out by past history.

              I was wondering about DMN’s.

      3. As opposed to Ginsburg and Kagan’s “normal” views that the 14th Amendment protects a “right” to stick a scalpel into a baby’s head and a “right” to shoot off in another man’s tuchis?

      4. “A nut case who, by the way, got a hearing and a vote.”

        It goes even beyond that. After his hearing, Bork lost the Judicial Committee vote 9-5. Typically that would have signaled the end of his nomination, but Judge Bork requested a full Senate vote. This he lost 42-58, with six Republicans voting against him.

        bernard11 is correct. “Bork as martyr” is the ultimate snowflake whiny nonsense….

  16. “Over the last few days, two leading left of center constitutional law scholars have written insightful pieces highlighting some of the dangers of court-packing: Noah Feldman (Harvard) and Neil Siegel (Duke).”

    Faux-leftist goobers like this, who somehow crept into out best liberal-libertarian institutions, should get out of the way and let the *real* progressives act. Open your mouth and close your eyes, clingers, and get ready for some progress!

  17. Not to put a fine point on it, “packing” is in the eye of the beholder and whether it’s a good idea depends on what the Supreme Court has been doing to provoke calls for court-packing.

    So there’s not really a substitute for comparing the jurisprudence of the “unpacked” court with the jurisprudence of a “packed” court and seeing if the “unpacked” court is so bad, so off the rails, that some packing is needed to get the Justices back on track.

    But that particular debate can’t be resolved in this comment section, all that the various sides can do it lay out their positions as to whether the Supreme Court is on the right track or not and what would be the effect of putting them on a different track.

    1. OTOH, one factor which may influence the Democrats is the position of the plaintiff’s bar. How will this key Dem constituency swing? I don’t know what their view is, or if they have a single view, but if they have a position they will let it be known and the Dems will listen.

  18. Again, I see absolutely no reason why adding justices is a bad idea.

    First, there’s no magic number so 15 or 25 is just as good as 9.

    Second, adding justices would dilute the politicization of the court (as we all fret about), and we wouldn’t have to worry as much about a single “swing vote.”

    Lastly, having more justices would (most likely) offer both Reps and Dems more opportunities to place “their guy” on the court, i.e. more positions eventually means more turnover even if we keep the lifetime appointments.

    This really isn’t a big issue.

    1. Two, three, or four times the same problems as now, yea!

      1. Yabut the “problem” now is when a vacancy arises there is a huge fight because of the limited opportunities.

        More opportunities would definitely lower the heat.

        1. “More opportunities” for heat lowers heat, yep.

    2. “First, there’s no magic number so 15 or 25 is just as good as 9.”

      Sure, but the argument isn’t ‘the justices are overworked and need more manpower’. It is ‘when control of the senate/presidency changes hands we increase the size of the court to 2N+1 so the enlarged court will rubberstamp whatever our new legislative majority wants to do’.

      N squared gets pretty big pretty fast. I don’t want to pay the taxes required to support tens of thousands of supreme court justices 🙂

      The argument against this seems to be ‘party A can do a naked power grab by stuffing their majority into the court, but party B won’t reciprocate in turn because ….’??? Party B is too moral for that? Party B will never be in power again???

    3. First, there’s no magic number so 15 or 25 is just as good as 9

      Wrong. The magic number is (n+1)/2, where n = number of Justices

      We’re only hearing about the possible expansion of the court because (n+1)/2 gives an unfortunate answer for the current value of n.

      But we could find a middle way, perhaps. Rather than leap in and increase the number of Justices on the Supreme Court, while some still doubt that it’s a good idea, maybe we shoudl start in a lower profile way. How about this year we add 5 to n for, say the DC Court of Appeals, and the 1st, 2nd and 4th Circuit Court of Appeals. Leave it for ten years, see how it’s all gone and then revisit the bigger question. Think we could get a bipartisan deal on that ? Let’s try to work together 🙂

  19. “I agree that Senate Republicans behaved very badly by, among other things, refusing even to consider President Obama’s nomination of Chief Judge Merrick Garland,”

    The Garland treatment was the result of the Dem’s abolition of the filibuster. with no filibuster, there’s no benefit to co-operating on judges, just wait until the white house switches hands. Kagan was the last justice that will ever be confirmed with anything approaching bipartisan support.

    1. Kagan was the last justice that will ever be confirmed with anything approaching bipartisan support.

      Your threshold for bipartisan support is refreshingly low. She got 5 Republican votes and only two of them are still in the Senate.

      1. That’s more opposing-party votes than anybody since.

    2. Not really, the filibuster was in place for Supreme Court nominees, but there is no need for a filibuster if you have the votes, and no need to take a vote if the outcome is already known.

      1. “Not really, the filibuster was in place for Supreme Court nominees…”

        As a practical matter, the filibuster for Supreme Court nominees was gone from the moment Reid nuked it for lower court nominees. To claim otherwise would be like the Republicans abolishing the filibuster for, say, bills that fund border walls, and then expecting the Dems to let the Rupubs filibuster other bills when power shifts.

  20. I favor court expansion. Best way to start to reduce the Court to its proper rule.

    No way that the parties can agree on reforms imho so unilateral acts it is.

    Not too concerned about a Dem expansion in 2021. Its not the last word, the GOP will increase it in turn.

    1. What could make you think Bob, after watching American emphatically reject your political preferences throughout your lifetime, that our nation is going to change course and begin to respect your policy choices?

      It seems fitting that you guys are drawn today the Lost Cause.

  21. Despite all the handwringing about how badly Garland was treated, I kind of wonder when Kavenaugh and Garland get together to compare notes which one thinks they were treated more unfairly?

    Keep in mind, how they were treated wouldn’t change the political calculus of confirmation, Garland didn’t have the votes Kavenaugh did. But I don’t remember a single disparaging word against Garland, not 10 cents of opposition research was done. That’s a lot better treatment than Kavenaugh got.

    1. Quit whining, clinger.

      1. Yeah! whining is Kirkland’s job around here!

  22. ” it was also little different from what then-Senator Barack Obama and many other Democrats unsuccessfully tried to do in 2006 with the nomination of Samuel Alito: prevent a vote from occurring by using the filibuster” — filibustering a specific nominee is different from denying _all_ nominees from a president.

Please to post comments

Comments are closed.