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Senate norms on Supreme Court nominations: We’re entering uncharted territory

Norms can be powerful as long as everyone feels bound by them, but once people decide to stop feeling bound to respect them, they’re no more powerful than a partisan talking point.

That Judge Merrick Garland is supremely qualified by brains, character and experience is not in serious dispute.
REUTERS/Kevin Lamarque

President Obama’s stalled nomination of Judge Merrick Garland popped briefly back into the news last week in a way that didn’t clarify things, but underscored the impending death of the old norms that have governed Supreme Court vacancies and appointments for generations.

Sen. Mike Lee, Republican of Utah (and an attorney and a member of the Senate Judiciary Committee) on Thursday publicly dismissed the idea that the Senate would give Garland a hearing, or a Senate vote or certainly a confirmation no matter what happens in the presidential election.

In his comments, Lee rejected the buzz that Garland was a relative moderate and that Republicans might prefer him to whomever Hillary Clinton might nominate next year. He also asserted that every justice nominated by a Democratic president over the last 50 years has been a doctrinaire liberal who can be counted on to vote the liberal line, as opposed to an “independent” who analyzes the cases honestly and decides them based on the Constitution and the law. (Perhaps that’s an overstatement, but it’s hardly delusional.)

Lee’s comments break ranks, to some degree, with the Republicans’ recent (and unconvincing) claim that they were refusing to hold hearings on Garland’s nomination until after the election because they wanted the American people, through their choice of a new president, to weigh in on the court vacancy. But Lee’s full comments suggested that he probably won’t support any nominee of any Democratic president who might be elected in the future.

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Although he is on the Judiciary Committee, is a former Supreme Court clerk himself, and is a leading light on judicial matters among the Republican right, Lee can’t speak for the whole Senate, nor even for all Senate Republicans. And no one knows at the moment which party will control the Senate next year. But we are heading down a slippery slope to a new normal in which it’s imaginable that Supreme Court vacancies could stay open for years, maybe while the court, which is currently stuck at a deadlock-prone eight members, might dwindle still further.

Possible twists and turns ahead

Many other possible outcomes are available. But we are in uncharted territory. I have no inside knowledge, but every strange possible twist and turn in the path ahead is somewhat plausible, and I can list some of the likeliest possibilities. Buckle your seat belt, because it gets pretty wild.

In analyzing a situation like this, it’s best to keep in mind a hierarchy of authorities. In our system, a clear, unambiguous constitutional provision is the biggest thing. Next come actual federal laws. Then actual clear rules of the Senate. And, finally, norms, rooted in past practice but not written down.

In this particular matter, of how the Senate is obliged to handle a Supreme Court nomination, there is very little other than norms, and the norms they are a’changing – fast – and all in the direction of increased partisanization of Supreme politics.

Norms can be powerful as long as everyone feels bound by them, but once people decide to stop believing in them or feeling bound to respect them, they are no more powerful than a partisan talking point. That’s where we are.

Constitution doesn’t mention size of court

Some people think the Constitution says a lot of things that it doesn’t say. For example, some Americans may think the Constitution sets the size of the Supreme Court. Article III, which establishes the Supreme Court, doesn’t say a word on the subject of its size. The size of the court is provided by congressional enactment. The court has had a nine-justice allotment since 1869. It fluctuated before that, starting at five, drifting up, once got up to 10.

In 1937 President Franklin Roosevelt, frustrated with a court that was striking down too many (in his opinion) laws he had signed, proposed to expand the court so he could appoint a bunch of new ones he liked better. That would have been technically constitutional, but it was such a shocking power grab across balance-of-power lines that the idea crashed, although FDR lasted so long as president that he eventually got a Supreme Court that was favorably inclined toward the New Deal. FDR ended up appointing eight justices.

The Constitution is clear on roughly two things. Thing one: Supreme Court justices have no term limits. They serve until they retire, die or are convicted (by the Senate) on charges for which they have been impeached (by the House). Only one justice has ever been impeached, but even he (Justice Samuel Chase, in 1805) was not convicted, which would have (and still would) required a two-thirds vote of the Senate.

Constitutional thing two: When there is a Supreme Court vacancy, the president nominates a candidate, but the nominee can’t don the black robe unless the Senate gives its “advice and consent” by a majority vote to confirm the nominee. The Constitution would be satisfied by a majority vote to confirm a judicial nominee, although that can be complicated by a filibuster. (The filibuster is a creature of Senate rules, not of the Constitution. More on the filibuster issue below.)

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But — and this gets directly to the Garland nomination — neither the Constitution nor any federal statute nor even any Senate rule — imposes an explicit obligation on the Senate to hold a hearing on a Supreme Court nominee, nor to take a vote on confirmation.

There is no such norm or rule

Senate Republicans, in refusing to give Garland a hearing, have claimed that there is some kind of longstanding precedent, sometimes even referred to by them to as a “rule,” not to act on a Supreme Court nomination that arises in the last year of a president’s term. But that’s rubbish. There is no such norm, rule nor even precedent. On the other hand, without a rule, without a precedent, if a majority of senators don’t want to vote on a nomination, nor even hold a committee hearing, nothing other than political pressure or their consciences can force them to do so.

The only law that seems relevant here is the one I already mentioned, which sets the size of the current court at nine. But if, as in the current circumstance, one of them dies or retires, there is no law requiring the Senate to do anything to fill it. If both parties adopt a policy of refusing to confirm nominees across partisan or ideological lines, the court could get a lot smaller.

There is one Senate rule that would be relevant here, and that’s the filibuster rule. The filibuster doesn’t matter unless a nominee makes it to the Senate floor for a confirmation vote, but if that should happen, with Garland or anyone else, opponents can mount a filibuster, and it might take 60 votes for cloture to force the Senate to take a final vote on a Supreme Court nominee. After the filibuster is broken, it takes just a majority vote (51) to confirm a nominee, and then he or she is in for life.

Only one Supreme nomination has ever been successfully filibustered. (That was Lyndon Johnson’s nomination of Abe Fortas to be chief justice in 1968). The rarity of filibusters is partly a reflection of the special, supposedly less political nature of Supreme appointments, which is one of the main norms that is eroding fast.

It should be noted that both Barack Obama and Hillary Clinton, in their Senate days, participated in a filibuster to block the confirmation of a perfectly well qualified nominee, Samuel Alito, in 2005. The filibuster failed, but was nonetheless part of the story of the increasing partisanization and politicization of Supreme Court nominees. Obama’s spokesman has since said that the president “regrets” his support for that filibuster. And he noted that the filibuster had no effect (because it didn’t have enough support). Still, their support for that filibuster make it hypocritical for either Obama or Clinton to decry politicization of the confirmation process. (Of Minnesota note, Mark Dayton, then a senator, also participated in the unsuccessful Alito filibuster.)  

The ‘nuclear option’

In the current Garland case, I said above that it “might” take 60 votes to end a filibuster. Current Senate rules require 60 votes to break a filibuster on a Supreme Court nomination, but that rule hangs by a fairly thin thread. All nominations used to be susceptible to a filibuster that required 60 votes for cloture. And Senate rules require a two-thirds vote to change a rule. But, in 2014, when the Democrats controlled the Senate majority (but less than two-thirds), they used their control to exercise what was called the “nuclear option.”

The theory behind that tactic was that a rule could be appealed to the chair of the Senate (either the vice president, if present, or a member of the majority party) and, if that chair rules something permissible, that evades the need for a two-thirds majority to vote to change the rule. This has been used rarely, and is called the “nuclear option” because it is like dropping a powerful bomb on the minority party, at the risk of blowing up Senate comity on other matters.

But the Dems did “go nuclear” in 2014, when they controlled both a Senate majority and the vice presidency, to do away with the 60-vote requirement to break a filibuster on all judicial appointments except for Supreme Court nominations. So the way things stand, it would take 60 votes to break a filibuster and force a vote on a Supreme Court nomination. But, if the next president’s party also controls the Senate majority, that could be changed to a mere majority vote, setting off a new nuclear explosion. (None of that will matter next year if, for example the president is a Democrat and the Republicans retain their current Senate majority.)

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So now let’s talk about norms, which is really where the main action is located. Politics have always been part of Supreme Court nominations, but for most of my life, the process was enveloped by a bipartisan desire to minimize at least the appearance of partisan politicization.

There’s always been plenty of politics in the background of Supreme Court nominations, but the background partisanship coexisted for many decades with the belief that the Court must be above raw partisan politics. That belief is almost gone and the Garland nomination has brought it to a new low.

The new normal is that the Supreme Court has become the last chance for whichever party loses an argument in the congressional and executive branches to trump up a constitutional argument and try to get their partisans on the Supreme Court – the unelected branch – to overrule the action of the elected branches. If you value the old norms, this is not a pretty picture.

(I wrote about this as part of the “Imperfect Union” series in 2012. The lead anecdote was about the appointment of Justice Benjamin Cardozo by President Herbert Hoover in 1932. Hoover was a conservative Republican. Cardozo was believed to be a liberal Democrat, although he had never run for office. But he was also understood to be the greatest legal mind in the country at the time. Hoover couldn’t appoint anyone else without looking like he was politicizing the process. So he nominated Cardozo and the nomination was confirmed by a unanimous voice vote. A unanimous voice vote. Nothing like that would happen today.

In 1987, the rejection of Reagan nominee Robert Bork, on a 58-42 vote with all Democrats voting no, was the clearest harbinger of the new normal.

All recent nominations have been both partisan and ideological, but until recently there were still some willingness by some senators to cross those lines and vote to confirm justices, still trying to keep alive the perception of a court system that was at least somewhat above politics.

Explicit promises this year

Both presidential candidates this year have explicitly promised to use their nomination power to advance policy goals. Hillary Clinton has specified that she won’t nominate anyone she can’t count on to vote to overturn the Citizens United ruling.  Donald Trump promises to name justices who will interpret the Second Amendment in the way that appeals to the gun rights element of his party. Under the old norms, presidential candidates would never have made such statements.

Now, explicitly, back to what Sen. Mike Lee said last week about Garland. That Garland is supremely qualified by brains, character and experience is not in serious dispute. But the “new normal” is that most Republicans feel they have to oppose him because his confirmation would convert the court from a 5-4 conservative majority while Scalia was alive to a 5-4 liberal majority. And that’s probably correct.

In choosing Garland, most analysts agree, Obama felt that perhaps — because Garland is not such a flaming liberal as some liberals might prefer or some of the other nominees on his list of finalists, and because he is already 64 years old, and because Republicans have to worry about whom Hillary Clinton might appoint if she is president next year – Republicans might swallow hard and confirm him.

Instead, as soon as the nomination was announced, Republicans declared that they would not even give him a hearing, which was unprecedented and is the latest evidence that the trends described in these last few paragraphs is getting stronger and stronger. When they first took that position, Republicans had high hopes that one of their own might be president in 2017.

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Now, with political odds makers unanimous that Hillary Clinton is the likely next president, both sides face new questions. If Clinton wins:

Should the Republicans immediately announce that (contrary to their former principle that the next president, with a fresh mandate, should choose the next justice) they will quickly hold hearings and try to get Garland confirmed, rather than end up with a younger, more liberal justice that Clinton might appoint? Lee ruled that out, but only for himself.

Should Clinton announce that she plans to renominate Garland anyway, which would increase the pressure on the Republicans to settle for him, or at least drop their former pretense that the key to their approval was a president with a fresh mandate?

Should Obama, immediately after Election Day, withdraw his nomination of Garland, with a statement that Clinton could renominate him if she so chooses but that he will not reward the Republicans for their obstructionism (and, ironically, seizing the Republican argument that the next justice should be named by a president with a fresh electoral mandate)?

President can withdraw a nomination

As a technical matter, there is no question that the president can, if he chooses, withdraw a court nomination. If Obama does not do so, the nomination would expire when the current Congress adjourns for the year, sometime in December. If the Congress technically doesn’t adjourn, the nomination would expire Jan. 3, when the new Congress is sworn in. Even that leaves 17 more days of Obama’s presidency and he could, if he chose, renominate Garland or even someone else, but all of these possibilities seem remote.

Of course, on Election Day, in addition to finding out who will be president, we will also find out which party will have a Senate majority for the next two years. If the Republicans have held onto their majority, should they announce that they will refuse to confirm any nominee that Clinton might name who would create a liberal majority on the court (or, more likely, not declare that but allow it become clear eventually by their actions)?

If some version of that last case becomes the new reality, it would certainly set an all-time high for politicization of court appointments. Senators taking that position would create a possibility that no new justices will be added, even as (liberal) Justice Ruth Bader Ginsburg approaches her 84th birthday in March, followed by (moderate Republican) Justice Anthony Kennedy, who will be 81 in July, and (liberal) Justice Stephen Breyer, who will be 79 next August.)

So finally (with apologies to have gone on so long this morning), what Sen. Mike Lee, R-Utah, (a young, Tea Party affiliated, hardline conservative who sits on the Judiciary Committee, who is a lawyer, who clerked for Justice Alito and recently hired Alito’s son as his chief counsel on judiciary business) said last week was that he wouldn’t vote to confirm Garland, even if he thought Hillary Clinton was going to win, because:

“I don’t believe there would be a real substantive distinction, a real noticeable difference between the voting pattern of a justice who would be appointed by a President Hillary Clinton … and Merrick Garland.” 

Maybe not. Lee also said that no justice nominated by a Democratic nominee since 1962 has been anything but a doctrinaire liberal, who votes the party line. Many Democrats harbor similar suspicions about Republican presidents and Republican appointees. What is left of the old norms of depoliticization? Said Lee:

 “The Senate also acts and the Senate speaks when it chooses not to hold hearings or votes, because that’s the same result as voting the person down. This is the Senate’s prerogative. … The Senate is a political body. And it’s put into the appointment process for a reason.” (Emphasis added.)

One last possibility occurs to me (and I am just making this stuff up). If we did end up in the situation described above where two or three or more vacancies accumulate, I suppose it’s possible that a president and an opposite party Senate majority could negotiate a package deal involving more than one nomination.