Donald Trump and the Supremes

Because the U.S. hasn’t had enough chaos so far in 2020, Supreme Court Justice Ruth Bader Ginsburg died Friday.

That set off a wave of ignorance about the Supreme Court and its nominating process specifically and about how the federal government works generally.

Ilya Shapiro starts with some history:

The big question looming over Mitch McConnell’s promise to hold a vote on Donald Trump’s nominee to succeed the late Justice Ruth Bader Ginsburg is whether the Democrats, should they win both the White House and Senate, will then add (and fill) more seats to the Supreme Court.

Although Joe Biden declined to join most of his fellow candidates for the Democratic presidential nomination in endorsing court-packing, the political pressure to do so may be too much to resist come January.

“I think the Kavanaugh nomination has put a fire under progressives,” said Caroline Fredrickson, then-president of the American Constitution Society (lefty counterpart to the Federalist Society) at the beginning of the primaries, noting that it’s “not written in stone that the court has nine seats.”

Indeed, the Constitution doesn’t specify the number of justices, but each expansion was historically accompanied by political mischief.

The Judiciary Act of 1789 set out six, but then the 1801 Midnight Judges Act would’ve reduced the Court to five at its next vacancy, to thwart the incoming president, Thomas Jefferson. In 1802, Congress restored the Court to six, a move Justice Samuel Chase opposed, which led to his impeachment (but not removal).

As the country grew, Congress created new circuits, with new justices appointed to each one. That all seems innocuous, but there were also political reasons for adding them, ones that didn’t always inure to the nation’s benefit.

A seventh seat was added in 1807, in part because Jefferson wanted to temper Chief Justice John Marshall’s Federalist proclivities, an unsuccessful maneuver given Marshall’s skill at swaying new colleagues. The eighth and ninth seats added in 1837 allowed a Jacksonian reshaping with the new justices supporting Chief Justice Roger Taney’s authorship of Dred Scott. Then a 10th seat was added in 1863, in part to allow Abraham Lincoln more leeway.

That tenth seat was never filled and, to prevent Andrew Johnson from naming anyone — and at the request of Chief Justice Salmon Chase, who presided over Johnson’s impeachment trial — Congress in 1866 cut the Court to seven, such that the next three departing justices wouldn’t be replaced.

In 1869, however, after two seats had been lost to that attrition, the Circuit Judges Act fixed the bench at nine, a number that has survived 150 years, allowing the Court to get the stability and prestige it never had previously.

The most famous example of attempted court-packing is, of course, Franklin D. Roosevelt’s Judicial Procedures Reform Bill of 1937. The president was fresh off a massive reelection—he won 523-8 in the Electoral College—and unhappy about a series of rulings against his New Deal programs. He proposed adding a new justice for every sitting justice older than 70½, up to a maximum bench of 15.

The plan met bipartisan resistance in Congress and faced public opposition by the justices — including progressive icon Louis Brandeis — and FDR’s own vice president. It led to huge Democratic losses in the 1938 election, with Republicans gaining 81 seats in the House and eight in the Senate.

Still, Senate Minority Leader Chuck Schumer said over the weekend that “nothing is off the table” if Republicans fill the Supreme Court vacancy before Inauguration Day. But if Democrats think they’d be reuniting the country by compensating for Republican-appointed justices they consider to be illegitimate, then they deserve the political losses that such ends-justify-the-means radicalism has historically caused.

And if they think that packing the Court would restore “norms,” then they really don’t understand the nature of governance. Just as two wrongs don’t make a right, you don’t restore norms by transforming institutions, particularly when doing so would mean eliminating the legislative filibuster, which would open an even bigger can of worms.

Maybe some deal could be worked out whereby, if the nominee isn’t confirmed before the election and Democrats win big, Republicans would promise not to confirm if Democrats promised not to add justices. Otherwise, to quote Bernie Sanders of all people, “My worry is that the next time the Republicans are in power they will do the same thing.”

In the end, the Democrats ought to draw a different lesson from FDR. By mid-1941, just four years after court-packing failed, only two justices remained whom Roosevelt hadn’t appointed—and one of those, Harlan Stone, he had elevated to chief justice.

In a very real sense, then, FDR packed the Court the old-fashioned way, by maintaining control of the White House and Senate and waiting for natural attrition. Joe Biden, take note.

Daniel McCarthy provides more history:

There are in fact plenty of examples of Supreme Court justices being nominated and confirmed with an election on the horizon. And there is even precedent for a president who has been defeated to make Supreme Court appointments just after an election, too, in the lame-duck period before the new president and Congress take office. After John Adams lost the election of 1800 to Thomas Jefferson, he pushed through as many judicial appointments as he could, and that included making John Marshall the chief justice of the Supreme Court. Marshall is all but universally revered today — not least because his decisions established the very principle of judicial review. The court matters today in large part because of the appointment of Marshall in circumstances not altogether unlike those that might emerge after November 3, if present polling that shows Trump losing proves correct.

The country was even more divided in 1800 than it is now, though the form that partisan animosities took were quite familiar. Just as Democrats have spent three years insisting that Donald Trump is a dangerous sympathizer, if not an actual puppet, of Vladimir Putin’s wicked Russian regime, the Federalist party poured its energy into depicting Thomas Jefferson as a lunatic left-wing ideologue madly in love with the French Revolution, longing to unleash anti-clerical bloodshed in this country. Jefferson and his coterie, for their part, were just as emphatic in warning that Adams and other Federalists were royalists plotting to undo the American Revolution and possibly reunite the country with the British Empire, in cahoots with the British.

Jefferson won and the country was not plunged into Gallic revolutionary terror — nor would it have become a British colony again if Adams had prevailed. Adams’s son loyally served Jefferson’s successor’s successor, President James Monroe, and by the end of their lives Adams and Jefferson were of one mind, more or less, in deploring the real enemy of the American way of life and the rule of law itself — that demagogic, wannabe dictator Andrew Jackson!

Jefferson, in remarks he supposedly made to Daniel Webster, sounds almost verbatim like some Atlantic writer fretting about Trump: ‘I feel much alarmed at the prospect of seeing General Jackson President. He is one of the most unfit men I know of for such a place. He has very little respect for laws and constitutions… His passions are terrible…he is a dangerous man.’ Election after election, America has always been on the hysterical brink of ‘fascism.’

Yet elections and the Supreme Court do matter, and if one of the persistent myths of American politics expects the arrival of the Antichrist in the Oval Office any day now, another persistent myth is that of a non-political Supreme Court.

Roe v. Wade, the refrain goes, sparked these desperate battles over SCOTUS. When pressed, those who say this — often they’re centrists of a somewhat leftward tilt, but I’ve heard it from certain conservatives, too — will reluctantly admit that, yes, other decisions had this effect, not just recent decisions on ‘social issues,’ but Brown v. Board of Education too. And before that there was Dred Scott v. Sandford.

Depoliticizing the Court and sending contentious questions back to states, where they vanish in a puff of benign localist consensus, is simply not possible. It hasn’t been since the Civil War, whose outcome required the passage of constitutional amendments to guarantee that states couldn’t continue to deny black people their rights as Americans. The amendments, however, turned the Bill of Rights upside down. What had started out as restrictions on the federal government — hence ‘Congress shall make no law…’ — became, thanks to the interpretations of the 16th and 17th Amendments, restraints on every level of government, with the federal judiciary deciding what those restraints would mean in legal reality.

Freedom of speech, freedom of religion, the right to keep and bear arms, and rights of contract at every level of American society are tied into the Supreme Court through the incorporation doctrine. Roe or no RoeBrown or no Brown, this always had political implications and was sooner or later bound to lead to increasing politicization of the confirmation process.

This is not something that is going to go away if Donald Trump gets to appoint a sixth Republican justice to the Court (or a seventh if he’s reelected and Justice Breyer bows out), and it will not go away if Joe Biden wins in November, either. Nor will Democratic dreams of packing the Court solve the problem, though doing so would shift the conflict to a new and likely even nastier phase. What Democrats pack, Republicans can pack or un-pack, too.

What voters should heed carefully are the increasingly openly stated plans that progressives have to turn America into a one-party state, through a combination of mass immigration, identity-group exploitation, ranked-choice voting, abolition of the Electoral College, attempting to do away with equal representation in the Senate, and packing the Supreme Court. These are not the tactics of a Democratic party that thinks it can win by playing by the rules, though, at the same time, Democrats seem unable to accept the fact that in competitive elections they will sometimes lose.

Instead of making a stronger pitch to Americans that they have written off as ‘deplorables,’ the Democrats want to snuff out competition by changing the game. That’s not a formula for ‘fascism,’ but it’s a good way to hasten a legitimacy crisis.

The genius of the federal system is that even when the national head-count minority wins — thanks to the Electoral College or equal representation in the Senate — the head-count majority doesn’t lose everything: it still has plenty of power in places like California and New York. But change the system so that plebiscitary majorities always prevail nationally, and it becomes easier to bully the losers.

The cult around ‘Notorious RBG’ has displayed the emotional fragility of white liberals as well: upon news of the justice’s death, Twitter and Facebook were flooded with emotional confessions from liberals who were ‘literally shaking’ or crying over the 87-year-old’s death. I don’t remember Justice Scalia’s death being met with strangers bursting into tears.

For those lacking in reading comprehension, Jim Geraghty reads the U.S. Constitution:

Here is the entirety of what the U.S. Constitution says about the president’s power to appoint justices to the Supreme Court:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

It doesn’t say anything about how close the vacancy is to Election Day. It doesn’t say anything about whether the Senate has to hold hearings about the nominee. It doesn’t say anything about whether the Senate has to vote on that nominee; a refusal to vote on the nomination, as occurred with Merrick Garland, is a de facto rejection. It doesn’t say anything about whether the Senate can vote in a lame duck session.

This means President Trump can nominate anyone he likes up until noon on January 20, 2021, if he isn’t reelected. The Senate can choose to hold a vote on that nominee anytime it likes. Or it can choose not to hold a vote on that nominee. If the Democrats win a majority of the seats in the Senate, they take over on January 3, 2021. If the Senate is a 50-50 split and Joe Biden wins the presidency, then Mike Pence breaks ties up until January 20, and then Kamala Harris breaks ties in the afternoon.

In case you’re thinking about the old “leave town and refuse to come back to deny the opposition a quorum” trick, the Constitution requires the U.S. Senate to have 51 senators present to hold a vote. If all 47 Democrats and Democrat-aligned independents leave town, the 53 Republicans present can vote to confirm anyone they like — as well as pass any legislation they like. The filibuster is no longer in effect in these circumstances. In 2013, Senate Democrats led by Harry Reid nuked the filibuster for judicial nominees except the Supreme Court; in 2017, Senate Republicans led by Mitch McConnell followed suit and nuked the filibuster for Supreme Court nominees.

In short, if the president’s party has 50 votes in support of a nominee, the nominee will be confirmed.

Politically, it may be worthwhile for President Trump to take his time. Fate has just given him a huge and consequential decision. Until the president announces his nominee, the question “who will Trump nominate?” will be the biggest story in the country — bigger than Bob Woodward’s book, bigger than the wildfires in the West, even bigger than the ongoing pandemic — barring some new spike in cases.

There are 46 names on the lists of potential nominees released by Trump in 2016, 2017, and 2018. All of them are the kind of potential justices that conservatives will cheer — although there are some philosophical differences here and there. The Democratic effort to paint the early frontrunners, Amy Coney Barrett and Barbara Lagoa, as extremists is already underway. But Trump could pick anyone on his list; the Democrats could spend weeks demonizing Barrett and Lagoa and then Trump could pick Allison Eid or Amul Thapar or any one of the other names that have received less attention.

You no doubt have heard about Ruth Bader Ginsburg’s statement, “my most fervent wish is that I will not be replaced until a new president is installed.” The dying wishes of justices do not outrank the U.S. Constitution. No president is obligated to sacrifice some constitutionally authorized power because a justice wishes she had retired four years earlier. …

You’re going to hear a lot of shouting about Republicans “stealing” this seat . . . by following the Constitution.

It didn’t have to be this way; not every Supreme Court fight was destined to turn into Ragnarok. We had a long era of bipartisan support for any Supreme Court nominee deemed sufficiently qualified, regardless of that judge’s philosophy or past decisions. The Senate confirmed Antonin Scalia 98–0, Anthony Kennedy by a vote of 97–0, Ruth Bader Ginsburg herself was confirmed by a vote of 96–3, and Stephen Breyer by 87–9. The pattern of bipartisan support ended in the George W. Bush years, with John Roberts confirmed 78–22, and Samuel Alito was confirmed 58–42.

In January 2006, then-senator Barack Obama declared: “I will be supporting the filibuster because I think Judge Alito, in fact, is somebody who is contrary to core American values, not just liberal values.” “When you look at his decisions — in particular, during times of war — we need a court that is independent and is going to provide some check on the executive branch.”

By 2016, then-president Obama, now in the position of nominating Supreme Court justices instead of voting on them, said that filibustering Supreme Court justices was “just throw[ing] sand in the gears of the process.” Earlier this year, Obama denounced the filibuster as “another Jim Crow relic” in his eulogy of John Lewis.

The overwhelming majority of officeholders in Washington operate on the high-minded principle that “I should get what I want, and the only ‘fair’ outcome is that I get what I want.” Once a plurality of Democratic senators rejected the notion that they should evaluate potential justices merely on qualifications, it was inevitable that Republican senators would adopt the same approach.

You can argue that the Republican-controlled Senate of 2016 should have at least held hearings on Merrick Garland. But that Senate had a 54-seat GOP majority, and it was extremely unlikely that four Republicans would have flipped to replace Scalia with Garland or any other Obama nominee. You simply were not going to get 50 votes to replace the conservative judicial icon with any Obama selection. If a president wants to replace a Supreme Court justice, he needs at least 50 senators who approve of his nominee, period.

In 2016, during the Merrick Garland fight, Joe Biden said, “I would go forward with the confirmation process. Even a few months before a presidential election… just as the Constitution requires.”

Joe Biden in 2020 rejects Joe Biden from 2016.

The Democrats reject their 2016 positions.

You Democrats may not like it, but McConnell in 2016 was very consistent that a party controlling the Senate different from the President has no reason to consider a pick. In fact, contrary to the bellyaching of the media and Democrats, the Senate is never under any obligation to act on a presidential nomination. It is a separate branch of government.

But that did not stop Democrats, including Joe Biden and Barack Obama, from insisting as much in 2016.

Maybe if the Democrats didn’t want Donald Trump to advance a nominee, they should not have tried to do so after Antonin Scalia’s death. President Trump now is just following Barack Obama’s precedent.

Likewise, Democrat threats to pack the Supreme Court and end the filibuster if someone is confirmed to replace Ginsburg ring hollow. They were already threatening both before a vacancy opened. It’s like Colin Kaepernick redefining why he took a knee. At first, it was in protest against the country. Only after outrage did it become about police brutality. The media helpfully ignored the original excuse-making just as the media is doing now with the Democrats.

Nonetheless, the GOP might as well advance a nomination and vote on it.

No honest person can deny if the Democrats controlled the Senate and White House that they’d decline. In fact, they absolutely would try to fill the seat and there is no reason for the GOP to abstain.

One can credibly make the argument that if the GOP does do it that it will escalate tensions in the United States and lead to more violence. I actually believe that is true. But I also believe to sit it out because of that is to give a win to terrorists.

Ronald Reagan said we should never negotiate with terrorists. We should not sit by for fear of the left burning down the country. They already are. The behavior needs to be repudiated.

I would recommend the President find a Hispanic nominee so the country can see the Democrats racistly savage and assassinate the character of a someone of Hispanic ethnicity. They won’t be able to help themselves and Hispanic voters can see why they might want to vote for Donald Trump.

The GOP holds the White House and the Senate. If they are not going to act, their base is going to wonder what the point is. They really have no choice and Democrat insistence on a nominations process in 2016 gives them wiggle room.

Use the Obama precedent and proceed. The media is never going to treat the matter fairly so damn the torpedoes, full speed ahead. All the threats by Democrats are threats they were making while Ginsburg was still alive. There’s no reason for restraint when the Democrats were already calling for unrestraint in their own governance.

Submit a nominee and confirm that person. If the Democrats pack the Court, add more seats with a Republican majority. If they scrap the filibuster, the GOP will have no reason to be restrained in scuttling Democrat pet projects in the future. The repeal of Lilly Ledbetter, Obamacare, Dodd-Frank, etc. becomes more likely in the next decade and that’s not a bad thing.

It’s a little amazing how few conservatives have pointed out the obvious about Garland — he was a horrible choice.

I myself would like to see U.S. Court of Appeals for the Seventh Circuit Chief Judge Diane Sykes, if for no other reason (other than that she is eminently qualified) than the identity of her ex-husband — Charlie Sykes, vehement critic of the president who would appoint her.


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