Thursday, June 02, 2016

High Stakes Poker at the Supreme Court

By Eric Segall

Dahlia Lithwick is one of our best Supreme Court reporters who blends accuracy and creativity like no other (disclaimer, she generously provided a blurb for the back of my book). I try and usually succeed at reading everything she writes. Over the last few weeks, Dahlia has been lamenting the current eight person Supreme Court calling it “A Bird with a Broken Wing,” and arguing that the Justices are not able to do their jobs given the four-to-four stalemate. She has also observed with great regret that covering the Court has become “boring” and that covering the Garland nomination is difficult because “no news is no news.” Dahlia’s politics are unabashedly liberal or progressive, and like most Court watchers on the left she wants a nine person Court, and she wants it soon.

I don’t think Dahlia is going to get her wish anytime in the near future. The GOP Senate is most likely going to keep its promise not to hold any hearings until after the election and, if Hillary wins and the Senate remains Republican-controlled, my guess is the Senate still will not fill Justice Scalia’s seat with a Democrat for an extended time. If Trump wins, my guess is Dahlia and others on the left will long for the boring days of the eight-person, equally-divided Supreme Court.

          The question I want to raise here is what should a Democratic-controlled Senate do if Trump wins the Presidency and nominates someone from the list he released last week? Everyone on that list is qualified to serve on the Court by traditional standards. Would Dahlia still argue that the country needs nine Justices even though such a Court would be awful for most minorities, unions, and criminal defendants (among others)? The liberal American Constitution Society (I am on the Board of the Georgia Chapter and occasionally blog for them) has adopted the motto “We Need Nine.” Will that still be its slogan if Trump prevails in the fall?

One response liberals may make to a Trump victory coupled with Democratic control of the Senate is that Garland should have been approved and thus Senate payback in the form of refusing to confirm a conservative for that seat is warranted. Of course, the GOP will likely respond that waiting four years is different than waiting one, and in any event two wrongs do not make a right (yes they will say that). Moreover, would Democrats really stonewall for four years? And, what happens if another vacancy (or three) occurs during that time period?

Mike Dorf suggested to me that it is extremely unlikely that, if Trump should prevail, the Democrats will take back the Senate and thus folks on the left are not worried about the possible hypocrisy of wanting nine Justices now but only eight later. Even if Mike is correct, and I'm not sure he is, there may well be times when it will be in the best interests of Democrats to argue that a full nine member Court is not necessary. After all, as I have argued here and elsewhere, over the course of American history, the Court has rarely been progressive but it has often often conservative, even at times reactionary (1900-1936).

This entire Garland affair is extremely high-stakes poker. Democrats are betting Hillary will win or that they can put enough pressure on the GOP that they will confirm Garland before the election. But for now, my question remains: Would Democrats prefer a boring, evenly divided Supreme Court or a Court where Justice Kennedy is again the most liberal member of a five person conservative majority? Not having a good answer to that question is not good poker, and right now the odds of needing that answer are sadly, maybe tragically, pretty good.


Joe said...

If Trump wins, he will likely appoint a conservative who would vote something like Scalia, so we would sorta be where we expected to be in that situation back in January. 4-4 can be better than that though in lots of cases, it won't matter much to many people. Let's say, e.g., the abortion case is decided 4-4. The Texas law will be upheld in large part. Texan women might appreciate women in let's say the 11th Circuit might still have more of a chance, but it is of only limited solace.

Anyway, your position about the appropriate power of the Court is duly noted. But, the Republicans don't want a 4-4 Court, full stop. They want it now because they don't like who is picking the 9th justice. There is no grand support for an eight justice bench long term. After the mid-1830s, we never had an evenly divided Supreme Court except for a short time (there was 10 once but health issues made the full allotment rarely to be present). So, eventually, we will have nine justices.

So, what 'high stake' poker game? The Democrats are emphasizing that the Republicans are imho wrongly denying Obama's pick to even have a hearing. That gets a bit of traction, hopefully will matter in swing Senate races. Eventually, yes, they need Clinton to win. Over the years, who controls the presidency matters a lot in part because of their power over court appointments. What else is new?

Plus, what happens -- granting Trump wins -- if RBG or Breyer retires first? Is there a special rule there that Trump has to appoint a liberal to get us a 4-4 ideological split?

Marty Lederman said...

Mike is absolutely right: There's no chance at all that Trump will win and the Senate will go Democratic.

But if that bizarro scenario came to pass, the Majority Leader would allow the nomination to come to a vote. Some Democratic Senators wold vote against on the merits -- but probably not 51 or more, unless Trump nominated a very, very contentious candidate (and certainly some on his "list" are not that). And. more to your point, virtually no Senators, or serious commentators such as Dahlia, would argue that the Court should remain at eight Justices for a considerable period.

Eric Segall said...

Marty, my point is that since the GOP has taken this extreme stance about Scalia's seat, Dems should leave open the possibility of not filling the seat with a conservative. They are likely to be outplayed with the current strategy.

Also, for all the reasons I have given before in my various essays, an equally divided Supreme Court is better for the country as a matter of principle, not that I expect to prove that to most law profs and lawyers. But the idea is gaining traction:,d.eWE

Don Smith said...

In the bizarre case that Trump wins and the Senate goes Democratic, there will be sufficient time between the opening of the "new senate" and Trump's inauguration to confirm Merrick Garland.

In the more realistic scenario, President-elect Biden (because I'm pretty sure there will be convention shenanigans) will get a Democratic senate, and will have no problem getting his nominees confirmed.

Greg said...

I think Joe's last sentence is the one that really matters. Sure, a magical 4-4 split court would be better than a court with a majority of the party you don't like. Give us 3 RBGs, 3 Scalias, a Breyer and a Roberts and let them duke it out to determine what the correct compromise rulings are. Unfortunately, there is no way to guarantee that the court stays that way. Eventually it will become a 5-3 split, and then we're no better off than with a 9-member court.

I'd also love proportional representation in the house, but it isn't going to happen anytime soon.

Would I prefer a court aligned to my ideology? Yes.
Would I prefer an undecided court to one aligned against my ideology? Yes.
Would I prefer a 5-4 split against my ideology to a 5-3 split against my ideology? Yes again.
A 6-3 or greater split against my ideology is of course even worse.

The conservative response doesn't seem so irrational to me. They're probably hoping Trump wins the presidency, RBG dies or retires and the court becomes firmly on the conservative side. Quite frankly, this is their best chance in years to pull that off and that's terrifying.

A democratic Senate dealing with a Trump presidency should do what opposition Senates been doing for years. Hold out for a semi-moderate and confirm them, hoping for the best. Garland is exactly that kind of nominee, but the Republicans are trying a hail-mary to get a significant portion of the court to swing conservative.

Joe said...

I aim to have one sentence that really matters on at least an occasional basis.

David Ricardo said...

This post makes the mistakes that many political pundits are making at this time about the November election, that the dynamic is the static. The political landscape is dynamic and ever changing and polls and analysis of the situation in June 2016 are largely irrelevant for forecasting the situation in November 2016. Look outside, it is green and warm. Does anyone think this is a harbinger for the fall weather?

So this post posits whether or not the current 4-4 split in the Supreme Court is good or bad, but seems to take the position that the current makeup of the Court will not change. This is folly.

Republicans want a majority of the Court in order to overturn Roe, allow states to discriminate against the LBGT community and do all sorts of unpleasant, un-democratic things. The conventional wisdom is that they need a 5-4 Court to do this. But 4-3 Court will do the job just fine. And given that two of the liberals Justices are pretty far along in the age category, if the Republicans simply wait they might soon have that 4-3 Court.

So the key thing about not even considering a vote on Judge Garland is that it sets a precedent that the Senate does not need to vote on the next vacancy. And notice that Republicans don’t even need to win the Presidency to get their Supreme Court majority. All they need to do wait and let nature take its course. And this is the huge danger in the current situation, something that most people seem totally unaware of.

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Don Smith said...

Of course, the religiously inclined among us might well believe that "nature taking its course" might end up with God putting his divine thumb on the scale yet again. After two presidential elections where the Almighty allowed Obama to win, and then the sudden departure of the archest of arch-conservatives, who's to say that Ginsburg won't outlive 'em all?