The Supreme Court as “Electoral Prize”

April 17, 2017
posted by Bob Bauer

It is difficult to follow Linda Greenhouse’s reasoning that the Court has been “broken” because it has been made into an electoral “prize.” Presidential candidates campaign on promises to support the nomination and confirmation of Justices who will move the Court’s jurisprudence in a desired direction. Why should they not? The Court does not decide only abstruse legal issues of interest primarily to learned commentators. If electoral competition necessarily features arguments about–to name a few– reproductive rights, or voting rights, or the role of money in politics, then it will require candidates to take a stand on the Court. And in some elections, the issue will be right in the thick of the fight.

Donald Trump made as much as he could of the critical importance to Republicans of a Court molded in the image of the late Justice Scalia. Secretary Clinton told the Democratic Convention that: “We need to appoint Supreme Court justices who will get money out of politics and expand voting rights, not restrict them. And we’ll pass a constitutional amendment to overturn Citizens United.” No one doubted that the election would be consequential for the Court. Voters were entitled to know how much of a priority each party attached to the issue and what the candidates would look for in their nominees. The parties and their candidates obliged–as they should have.

None of this excuses the Republican refusal to provide a hearing for and allow a vote on the Garland nomination. But it is mistake to confuse this escalation in the struggle over the Court with the larger point about the central importance in national political conflicts of the Court’s composition. The Senate has an obligation to attend to the procedures and norms consistent with institutional interests and its governing responsibility in the long run. One aspect of this obligation is managing and translating political pressures, not giving entirely into them, in order to preserve the capacity of the body to function as a creditable legislature. If Senator McConnell were to announce that the Senate majority will closely coordinate legislative priorities with the RNC and that the RNC Chair will attend, to this end, the weekly Senate Republican Caucus lunches, there would be an outcry.

The Garland maneuver is an abuse close to this in kind. The Republican Senate majority decided to shape a process—in effect, to invent one–to enable the party’s Presidential candidate to campaign on a pledge to nominate the appropriate successor to Scalia, and to turn the nomination into electoral prize. The Senate subordinated its “advice and consent” function to Republican electoral objectives. Never before had the Senate taken the position that a duly elected President in an election year had no call on the Senate to advise and consent on a Court nomination. As Robin Bradley Kar and Jason Mazzone have shown, the Senate has “transferred” to the next administration the power to nominate to fill a vacancy only when the president had assumed office on the death of a predecessor, or a nomination was made by one president after another had been elected but not yet taken the oath.

So Senate in 2016 broke new ground. And, as Kar and Mazzone point out, there is no limiting principle:

Why not, for example, proceed to think that once half of a President’s term has passed, it is more democratically legitimate to wait until the next election to fill any Supreme Court vacancies that may arise? And once that has happened, why not think that the people should weigh in on every Supreme Court vacancy as part of the next election?

The effect of the 2016 power play is not only, as the authors suggest, making the judiciary “little more than an arm of politics.” It is just as much to have the Senate openly manipulate its “advice and consent” function in the service of electoral political objectives.

Would it have been different had the majority held a hearing and allowed a vote, then blocked confirmation? There may have been no difference in outcome, but formal process does matter: it is in part of what distinguishes a legislature with rules from one that openly follows the dictates of partisan politics. Then the Senate would, at least, have been acting like the Senate, doing what the Senate is supposed to do. Politics would have hung heavy and unavoidably over the proceedings, but there would have been debate, votes, the defense of votes, and compliance with the core “advice and consent” responsibility.

But the Senate’s failure presents one question, the worry about the Court as an “electoral prize” presents another. Ms. Greenhouse has mixed them together. In the contest between the two parties, control over Court nominations is a prize: as unpleasantly as this statement may strike the ear, it is one of the spoils of victory. And there is a reason for this, which is the power of the Court and its appetite for taking on many of the divisive issues of the day, with confirmed Members serving for life. As Rick Pildes recently wrote for the Washington Post’s Monkey Cage:  “the power of the Supreme Court has increased significantly,” manifested in both aggressive exercise of its power to overturn congressional enactments on constitutional grounds and statutory interpretations that go unchallenged in conditions of political polarization and gridlock.

There may be ways to ease the pace and intensity of this trend. There has so far been limited interest in them. The likely explanation: partisans, Democrats or Republicans, are not inclined to diminish the value of the prize, because, after all, it may one day be theirs.

And some like Rick Hasen are now suggesting that it might be made into a Grand Prize: the party controlling the Congress and the presidency could enlarge the Court and “pack it” with Justices to its liking. That should make for a lively debate and no-holds-barred competition in the next presidential campaign.

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