The Legislative Seems to Be Pushing Back the Power of the Executive in One Area

It's appellate and Supreme Court judicial appointments.

|The Volokh Conspiracy |

Apropos this morning's item about Congress generally not reining in the President, I thought I'd note one area where the Legislative branch—or, to be precise, its upper House—has clawed some power away from the Executive: Court of Appeals and Supreme Court judicial appointments.

At least for much of the late 1900s, the President has been seen as having broad latitude to appoint such judges, even when the opposite party ran the Senate. Some appointments, to be sure, were blocked (especially before the filibuster was abolished, and the senatorial blue-slip policy weakened, for such matters), but on balance the Senate largely deferred to the President's choices.

It seems likely that this has changed, at least for the foreseeable future. When the President and the Senate are from the same party, appointments will go smoother than before (because of the abolition of the filibuster). But when they are of opposite party, I expect that there will likely be a lot of pushback from the Senate. Perhaps spots will be left vacant, at least for a short while (and especially on the Courts of Appeals). Or perhaps deals will be worked out, for instance ones through which the President proposes one seemingly liberal candidate and one seemingly conservative one.

I'm not claiming that this is a good development or a bad one; I'm just trying to point out that this is one area where the Legislative/Executive power balance has been shifting a bit to the Senate (or at least to the majority party within the Senate).

The Constitution, of course, gives both branches a role in judicial appointments—the President to nominate, and the Senate to decide whether to consent (and also to give "advice")—but leaves disputes to be resolved through the political process. The resulting compromise positions can be tugged to and fro by the branches, as the party leaders' and members' preferences change. As I understand it, in the late 1900s the pattern was chiefly that the Senate had a lot of power over District Court appointments but the President had the great bulk of the power over Court of Appeals appointments and especially Supreme Court appointments. Now we're seeing that ebb away from the President, though of course that too is a political shift that could be reversed in future years.

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  1. Before pronouncing recent experience a new norm, EV ought to wait to see if any but Democratic presidents see their appointment powers reduced. It seems logical to suppose partisan politics would deliver that result, but that is just a guess about the future.

    A wiser alternative would be some good-faith compromise, perhaps using an agreement to apply stringent super-majority requirements designed to take partisan politics out of judicial appointments altogether. To achieve that would probably require that the current Republican advantage on the Supreme Court—which Democrats regard as won illegitimately—be somehow set to neutral.

    That would still benefit Republicans, leaving recent lower-court partisan advantages in place. It would also take considerable Democratic Party political power to force such a compromise outcome—something which seems impossible to assemble any earlier than 2025, and maybe not even then.

    1. Why would Democrats leave in place any Republicans advantages they could overcome?

    2. When there was a Republican President, but Democrats held the Senate (2007-2008 comes to mind), the rate of judicial appointments was already being reduced quite dramatically. Earlier than that via use of the fillibuster, but by later by just not allowing Bush picks out of the Senate.

      Indeed, Democrats managed to keep two seats in the circuit court (in the 4th Circuit) empty the entire time W. Bush was president.

      1. Indeed. Mr Lathrop seems to be under the misapprehension that garlanding started with Garland.

        1. In fact, the entire Garland thing was kind of ridiculous.

          I will tell you that in 2008, it was WIDELY discussed among liberal circles that Bush would not get a Supreme Court seat if someone retired or died that year. It would wait until after the election. Joe Biden even said it aloud on the floor of the Senate, and I believe Schumer articulated it as well.

          But then when the Republicans actually did what the Democrats intended to do, suddenly it was an outrage and a theft of a seat.

    3. We had stringent supermajority procedures for nominating judges, but they were overused by both sides for partisan advantage and then Harry Reid scrapped them.

      1. Kazinski, they were not stringent enough. To be stringent enough, super-majority requirements have to foreclose any possibility of partisan advantage, no matter how long an appointment is delayed, or how many appointments are rejected.

        In principle, the majority required should be so large that any hint of political involvement found in a candidate’s history will trigger opposition sufficient to doom the nomination. At that point, it should not matter to anyone which party the president making the nomination belongs to, because criteria other than politics will become the new grounds for selection.

        Let the Senate instead advise and consent based on legal knowledge, judicial temperament, writing ability, collegiality, etc. Keep doing that until ambitious would-be justices also get the message, and learn to steer clear of politics, instead of trying to leverage it to advance their ambitions. In short, reform the supreme court, and get the taint of political illegitimacy off it.

        If you find faults with this suggestion, please try to evaluate them compared to the faults which are tearing down the court’s legitimacy now, and compared to the specter of more-massive direct political involvement predictably to come.

        1. “In principle, the majority required should be so large that any hint of political involvement found in a candidate’s history will trigger opposition sufficient to doom the nomination.”

          All this does is make it easier for the minority party to block legitimate candidates for purely partisan reasons. Which, as Kazinski pointed out, was happening even under the old super majority requirement.

          “Let the Senate instead advise and consent based on legal knowledge, judicial temperament, writing ability, collegiality, etc.”

          Where are you going to come up with these new Senators who aren’t interested in partisan advantage and their own reelections? If the current Senators were angels, as you proposed Senators would need to be, the current system would work fine.

        2. “Let the Senate instead advise and consent based on legal knowledge, judicial temperament, writing ability, collegiality, etc. ”

          One of the things I find amazing about you, Stephen, is that you worship the Constitution but seemingly have no idea how it actually works.

          The Senate is a political institution, part of one of what we call the “political branches” of government. It is NOT part of the Constitutional design that the political branches will ever ignore politics. The design is to supposedly harness political forces and incentives for good results. You can argue whether it does that well or not. But that’s the design.

          The Senate was always expected to consider politics in judicial nominations, always has done so, and always will do so. State governments that don’t want this have independent commissions confirm judges. But in the Constitution, it is left to the Senate PRECISELY BECAUSE THE FRAMERS WANTED SENATORS TO REJECT NOMINEES THAT THEY FOUND POLITICALLY UNACCEPTABLE, AND THOUGHT IT ABSURD THAT THE SENATE WOULD LIMIT ADVICE AND CONSENT ONLY TO IDEOLOGICALLY NEUTRAL CONSIDERATIONS.

          That’s what the Constitution does. Because, you see, the framers were politicians. They didn’t think politics was a dirty word.

    4. A wiser alternative would be some good-faith compromise, perhaps using an agreement to apply stringent super-majority requirements designed to take partisan politics out of judicial appointments altogether.

      Good luck with that, lathrop. Won’t happen. Not now.

      1. XY, the notion is that the compromise can be forced, if sufficient political power to do it can be assembled. At present, that would mean at least control of both political branches by the Democrats. So right, not now.

        1. Do you even listen to what you’re saying? If it’s compelled by force, by definition it’s not “compromise”.

          1. Reminds me of a wonderful proposal by Gordon Brown, the last Labour Prime Minister in the UK, to deal with youth unemployment.

            He proposed “compulsory voluntary work.”

  2. When it’s a Republican majority in the Senate, it’s 20% of Americans. When it’s a Democractic majority, it’s 70% of Americans. There is a difference. Unless you want to respect the wishes of slave states for whom this system was devised.

    1. No, it was devised for Rhode Island, Connecticut, and Vermont / New Hampshire, the small states. Georgia and the Carolinas were small but had room to expand.

    2. While we don’t know the population as of the ratification of the Constitution, we do know the results of the 1790 census which was only three years later. At that point, there were 16 states. The smallest half of them were, in order by population:
      Delaware
      Rhode Island
      Kentucky
      Georgia
      Vermont
      Maine
      New Hampshire
      New Jersey

      2 of the 8, Kentucky and Georgia, were slave states. The other 6 were not. The Senate’s structure was designed to protect small mostly-northern states, not slave states.

    3. “When it’s a Republican majority in the Senate, it’s 20% of Americans. When it’s a Democractic [sic] majority, it’s 70% of Americans. ”

      Highly doubtful.

      10 smallest states, 10 GOP, 10 Dem

      10 largest states, 10 GOP, 10 Dem

      1. I got curious and ran the numbers. Using the results of the last census (2010) and running it against the political parties of the current Senate:
        Democrats have 43% of the Senators representing 52.6% of the population. Republicans have 53 Senators representing 47.1% of the population. (The 2 Independents represent 0.3%.)

        Interestingly, when you run the same numbers against the current population estimates (from Wikipedia), the D representation drops to 51.6% and R increases to 48.1%. This implies that D-controlled states are losing population to R-controlled states.

        So captcrisis has a point but it’s a much, much smaller point than he thinks.

        1. Looking at it another way, the median state population in 2010 was 4,436,370. Of the 25 smaller states, the Senate counts are:
          D 19, R 29, I 2
          Of the 25 larger states, the Senate counts are:
          D 26, R 24

        2. Apologies for the typo. Should read “Democrats have 45% of the Senators…”

  3. Ironically, when our government of divided powers is working correctly, it’s damned inefficient, by design.

    1. Yup. Dysfunctional government, great economy. Just imagine how great things would be if something were fucking up the trade war.

  4. This is a rather unusual area though, where the Executive Branch is not exercising executive power and the Legislative Branch is not exercising legislative power.

    They’re both exercising judicial appointment / approval power, where the Constitution has scratched about for some available players to play a role in something that isn’t really any of the three branches. (It’s the appontment of the Judicial Branch, but that’s not exercising the judicial power.)

    But where the fireworks could really start is whith executive branch appointments, which is definitely part of the executive power. Personnel is policy and all that. Up until January 2017, the minority party in the Senate has never really tried to block executive branch appointments. Sure they’ve sometimes tried, and sometimes succeeded at, gotchas with undocumented Central American maids or tax, but that’s trying to use the media to apply political pressure. It’s not using actual Senate procedure to slow walk nominations.

    But Chuck has given it a good go in his time as Minority Leader, and though he’s been pretty successful at the slow walking, ultimately he’s in the minority, and the Rs can push things through if they want to. What will be fun to watch will be when there is a President of the Big Endian Party and a Senate of the Litttle Endian Party, which hasn’t happened since Chuck started trying to play hardball with Executive Branch appointments.

    So, for example, Loretta Lynch got confirmed by a Republican Senate. But it’s inconceivable that Bill Barr would have been confirmed by a D Senate. Are we going to see Presidents have to give ground, big time, to an opposing party Senate majority on Executive Branch appointments ? Watch this space – we could be there in 2021, either way round.

    In the betting markets, Trump is currently a little under 60% for reelection and the Rs are about 66% to retain the Senate. If these were independent variables, which they’re not, that would make it about 50-50. In reality maybe only 40% chance.

    But it could be fun, and initially asymmetric. If Trump wins but the Ds win the Senate, Trump can just keep his existing people (though he would have to choke back his penchant for firing them when h gets annoyed.) But President Sanders with a R Senate might have difficulty stocking his Cabinet.

  5. I welcome this result.

    There is no reason why a party should ever confirm judges nominated by the other party.

    Judges are all powerful in our current debased system. So its too dangerous to let your opponents onto the bench.

    1. There is no reason why a party should ever confirm judges nominated by the other party.

      This goes too far. We are very polarized, especially on issues such as abortion, so it is hard to see how this would ever work. But the notion that there could never be a deal made is extreme.

      Here’s an example that actually could happen. Let’s say that we have divided government, but TWO seats, one liberal and one conservative, both become vacant. The President and the Senate Judiciary Committee chair start negotiating, and strike a deal where each party gets one of its preferred nominees. Think that could never happen?

      1. The President can always defect and appoint the one he wanted to appoint, and not appoint the one the Senate wants 🙂

  6. Just a thought: in the early modern English courts, there was a direct incentive to staff the courts, namely the fact that each represented a certain theory of power, and each had its own external constituency. The sovereign had an interest in preserving the plenary prerogative powers from the platform by the throne, and the legal experts on Common Pleas and the sergeants permitted to practice there wanted to uphold the ancient writs from their more modest perch midway down Westminster Hall. Modern courts inherited many of these powers, but not their external constituencies.

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