Monday, May 23, 2016

Trump's SCOTUS List and the Garland Nomination

by Michael Dorf

What, if anything, is wrong with a presidential candidate releasing a list of the names of his or her prospective SCOTUS nominees, as Donald Trump recently did?

The most obvious objection to the list is that it politicizes Supreme Court nominations. There is a naive version and a sophisticated version of this objection. The naive objection says that injecting prospective SCOTUS nominees into a presidential election campaign politicizes the appointments process. No one who is remotely sophisticated makes this objection in this form, but it is tempting for people who want to view Trump's list as nothing special to respond to the naive objection. For example, a HuffPo story notes the connections of people on the list to current Republican senators, which elicits from attorney Ken Gross this nothing-to-see-here-so-move-along response: “What else is new? ... You do things to ingratiate yourself to senators and others to garner their support. ... It’s politics as usual." To similar effect, the same story quotes George Washington University political scientist Sarah Binder grudgingly admitting that perhaps the Trump list marks a difference in degree from prior politics around judicial appointments but denying any difference in kind.

It strikes me that Gross, Binder, and others who point to the fact that politics already infuses judicial appointments have missed the point of the objectors. The question is not whether it is legitimate for a president or presidential candidate (or for that matter a Senator or a Senate candidate) to take politics into account in considering whom to nominate (or confirm) to a justice-ship or judge-ship. Just about everyone agrees that this is permissible and universal. The question is whether any particular means are or ought to be off limits.

Surely some means are off limits. Consider the attempt by former Illinois Governor Rod Blagojevich to sell a nomination to fill a vacant Senate seat for money laundered either through a non-profit organization or a campaign contribution. Last December, the 7th Circuit ruled that Blagojevich could not be convicted for attempting to exchange one appointment for another (which the court characterized as a familiar and legal form of logrolling), but that outright sale was criminal. Outright sale of a Supreme Court seat is likewise illegal.

I'm only invoking Blagojevich's case to show that there is a line, not to say that Trump went over it. Trump's list is pretty clearly on the legal side of the line, in the sense that it is not bribery or extortion. He is telling Republican senators and conservative voters that they can and should support him in exchange for his nominating a conservative to the Court: that's logrolling, not extortion or bribery.

But to say that Trump didn't commit a crime by listing prospective nominees is not to say that he did nothing wrong. The sophisticated version of the politicization objection says that there is something wrong with naming specific prospective appointees. Presumably that something is that it turns the selection of a Supreme Court justice into something like an election.

There are things to be said both for and against judicial elections. I tend to find the arguments against judicial elections stronger, but many states hold judicial elections, and within extremely broad limits (as articulated in the Caperton case), an elected judge can be an impartial judge. But the Constitution provides for indirect selection, life tenure, and salary protection for Article III judges on the theory that politics should enter into the selection of judges only indirectly. A prospective president who names particular individuals undermines that insulation from electoral politics.

How good is that objection? The more names that are on the list, the less serious the worry. Thus, by putting out a list of 11 judges Trump would consider, without promising that he wouldn't go beyond the list, Trump seems to have fallen short of violating the spirit of the appointments process. The non-exclusive list of 11 is simply an unconventional way for Trump to promise to nominate deeply conservative (white) people to fill the current and any future vacancies. Indeed, the very indeterminacy of the project (coupled with Trump's record of mendacity) has led some Trump-wary conservatives to a quite different worry; they don't fear that Trump has promised particular conservative nominees; they worry that he will break his promise.

If Trump's list itself does not threaten the spirit of the constitutional appointments power, this brief exploration of what might be wrong with it leads to a different conclusion about Judge Garland. During the general election campaign, the Democratic nominee will undoubtedly be asked whether he or she will re-nominate Judge Garland should the vacant seat remain vacant in 2017. In the seemingly unlikely event that Bernie Sanders is the nominee, there is an easy answer: not unless there are adequate assurances that a Justice Garland would vote to overrule Citizens United, which Sanders has declared would be a litmus test for his nominees.

For Hillary Clinton, the question is trickier. On one hand, merely equivocal support for Judge Garland could look like disloyalty both to Judge Garland and to President Obama. On the other hand, a President Clinton might want to use the prospect of the Supreme Court vacancy to energize constituencies that are outraged by the Senate's inaction on Garland but only lukewarm towards Garland himself.

The Trump list provides a good way for Clinton to dodge the question. If I were writing her talking points, I would script the following answer:

Under our Constitution, the president has the power to nominate on his or her own, and to appoint with the advice and consent of the Senate. The failure of the current Republican Senate to do its job by holding hearings on President Obama's nomination is disgraceful. But Donald Trump is also attacking our constitutional traditions. When he announced in advance his list of nominees--which included no people of color and only right-wing ideologues--he showed disrespect for our Constitution by trying to convert a presidential election into a Supreme Court election. I'm not going to follow that dishonorable path by naming any particular individual. Etc.

Clinton campaign: You're welcome. 


Hashim said...

Even if Trump had named a single individual, committed to appointing him or her, and followed through, I fail to see how that'd be anyway analogous to judicial election.

The primary objection to judicial elections is that judges' rulings will be affected by desire for re-election. That's not implicated here, since there'd still be life tenure.

The secondary objection to judicial elections is that judges' rulings will be affected by commitments they made on the campaign trail to get elected the first time. Again, that's not implicated here, since the judge still wouldn't be campaigning and obviously wouldn't feel bound by anything Trump said.

The tertiary objection to judicial elections is that the people can't be trusted to make the choice. Again, that's not implicated here, since the President still would have made the choice.

Is there some other concrete objection to judicial elections that's actually apposite? Otherwise, I fail to see how this is remotely analogous.

Finally, if the President pre-comitted to naming a specific secretary of state, would you view that as analogous to popular election of executive officials (which the constitution also rejects)? And if the President and Congressmen pre-committed to specific legislation, would you view that as analogous to a legislative initiative (which the constitution also rejects)? I fail to see how any of those things is any different.

Joe said...

The last part of the proposed text is sly -- she's basically reminding people that the election is important to whom is on the Supreme Court, it is a sort of "judicial election," and referencing the types of people she would not appoint.

It's a bit too coy imho. Most of the text is fine -- the Republican Senate not doing its job, the importance of the nomination, her disagreement with the type of justices Trump would pick (and questioning his judgment in doing something as important) etc.

But, listing eleven people of the sort he would pick isn't much of a "judicial election" and that is a tad heavy-handed and not something many will find problematic. Orin Kerr et. al. weren't impressed by the list but didn't bring up that problem. If law professors don't immediately go there & everyone knows judicial nominees (and the basic sort of people a candidate would pick) is important, seems not something to say. Some very well might think it a good thing, since it helps flesh out Trump's positions on such issues.

Michael C. Dorf said...

It's chiefly the second objection. A nominee very clearly identified with a presidential candidate would be effectively running for the SCOTUS position, even if he or she is not bound. (The awkwardness would be clearer with just one prospective nominee.)

To be clear, I don't think that this would be unconstitutional and certainly no one would have standing to challenge this. My claim is that naming one (or two or three) specific individuals during the campaign violates the spirit of the appointments process. That may explain why no one has done this before.

As to an executive branch official, there is less of a concern about independence (really no such concern), so even though the appointments process is the same, pre-naming someone strikes me as less problematic.

Greg said...

I'm not sure that I agree with all of Hashim's assertions.

The primary objection to judicial elections is that judges' rulings will be affected by desire for re-election. That's not implicated here, since there'd still be life tenure.

Agreed. Desire for re-election would not be implicated.

The secondary objection to judicial elections is that judges' rulings will be affected by commitments they made on the campaign trail to get elected the first time. Again, that's not implicated here, since the judge still wouldn't be campaigning and obviously wouldn't feel bound by anything Trump said.

Why wouldn't the proposed nominee be campaigning? Once a presidential candidate has committed to nominating a particular judge, why wouldn't that proposed nominee then campaign for that presidential candidate? Indeed, that seems to be a significant purpose of naming them. Even if the proposed nominee doesn't actively campaign, they will become a focal point for judicial requests for the new administration, which will make avoiding commitments quite difficult, especially when people are asking for them in exchange for large campaign donations to the presidential candidate who committed to nominating them.

The tertiary objection to judicial elections is that the people can't be trusted to make the choice. Again, that's not implicated here, since the President still would have made the choice.

Again, I disagree, but for more complicated reasons. A presidential candidate who is committing to nominating a particular individual while on the campaign trail will likely pick someone who they think will benefit them politically when campaigning, not someone who they necessarily think will make a good justice. In this case, nominating someone who the elected president committed to on the campaign trail is just a cost of becoming president, even if they considered this individual unqualified or a poor choice for the position to which they committed to nominating them. Thus, the people get the justice that they will elect, and not the justice that an unbound president would have nominated.

I don't think any of this should be considered unconstitutional, but it seems like a really, really bad precedent to get into for nominating justices. Committing to particular individuals for executive positions is not nearly so problematic, as these positions are directly supervised by the president and are not expected to be politically isolated and impartial.

Greg said...

Joe, while I agree that the particular wording of Prof. Dorf's denouncement may go a tad too far, I think his point is valid. Clinton can use the objections that have been voiced over Trump's proposing a list as political smoke-screen to cover a non-answer on Garland.

Joe said...

"Clinton can use the objections that have been voiced over Trump's proposing a list as political smoke-screen to cover a non-answer on Garland."

I don't quite know what this means.

Joe said...

As to Prof. Dorf's reply, perhaps this suggests a long list, and one not fixed in stone (especially for Trump!) is more acceptable.

Let's say Cruz said "I think people like Judge Sutton [and a few other names] are the types of judicial nominees a President should pick" during his campaign. Would that be wrong?

Mark Regan said...

Isn't a principal problem with Trump's list that it's a signal to every Judge Badenov on that list -- and everyone on the list is a sitting judge -- that they'll need to decide the cases before them right now in a way that will continue to appeal to Trump? "Listen, Boris, Heritage and I think you're great -- now don't mess this up, like Sutton and Kavanaugh."

Hashim said...


On the second objection, the named nominee wouldn't be campaigning themselves because they're all sitting federal/state judges who presumably wouldn't engage in such behavior. I guess Greg's right that it's possible (though quite unlikely) that the sitting judges (esp. the state ones) nevertheless could make public comments in order to increase the likelihood that their "slate" gets elected, but *that* would be the problem, *not* merely naming them. And, as to Mike's reply, I remain unconvinced that any judge would feel any more aligned with the President who nominated them based on the mere fact that the nomination occurred pre-election rather than post-election; good judges wouldn't feel any alignment at all, and bad judges would be biased toward their President's legal positions based on gratitude for the appointment, not its timing.

On the third objection, while a Presidential candidate's judicial selections may be influenced by politics, that's also true for a sitting President's judicial selections. It depends on whether or not the President considers politics in making judicial selections. I again see no reason why a President is significantly more likely to consider politics pre-election than post-election, especially w/r/t a first-term President who'll have to stand for re-election.

Greg said...


I anticipated your point on the second objection, and tried to head it off with the idea that once named, the sitting judge becomes part of the political process, whether they like it or not, and will be pressured to make political promises, even if they don't seek them out. I'll admit that there are slippery slope aspects to my argument, but these are judges, and I prefer to stay well away from the appearance of impropriety.

On the third objection, I disagree. Politics in a presidential election year are dramatically different that politics at other times. One need look no further than the current election and the nomination of Judge Garland to be convinced of that. 6 years ago, even during mid-term congressional elections, Garland would have been easily confirmed. Further, we're not seeing political maneuvers based on Justices Kagan or Sotomayor, it's only Garland that anyone is paying attention to.

Hashim said...


On the second point, looks like we'll have a nice natural experiment: color me skeptical that any of the folks on Trump's list will feel any pressure at all to make any promises, much less make any; and I highly doubt it'd have been any different if only one person had been named.

On the third point, Garland's non-confirmation has very little to do with politics. Rather, his confirmation would significantly shift the jurisprudential balance of power on the Court, and that result can be avoided because of the fortuity that there's an imminent election. In other words, the only reason Garland would have been easily confirmed in a year other than a Presidential election is because Republicans couldn't plausibly keep the seat vacant for such a long period of time.

Likewise, Garland's nomination has very little to do with politics. A 65-year-old white guy isn't exactly the target demographic for the Democratic party. He was picked for confirmability. The closest to politics that his nomination comes is that his pedigree makes it slightly easier to use Senate obstructionism as a tool against the Republicans (though apparently to little effect, at least thus far).

Conversely, let's just say that I respectfully disagree about the role that pure politics has played in the nomination by sitting Presidents of certain Justices, both past and present.

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