Tuesday, July 10, 2018

Polarization and the Kavanaugh Nomination

by Michael Dorf

As we approach what then-Senator Joe Biden memorably termed the "kabuki dance" of a Senate Judiciary Committee confirmation hearing for a nominee to the Supreme Court, staffers are no doubt busily assembling questions and follow-ups for the Senators to ask Judge Kavanaugh. The exercise is largely pointless. Judge Kavanaugh will not say that he has active plans to overrule Roe v. Wade or any other precedents--and that will be sufficient to satisfy at least one of Senator Collins, Senator Murkowski, and the three red-state Democrats who voted to confirm now-Justice Gorsuch. The only really open question is the final vote.

Perhaps even some blue-state Democrats will vote to confirm Judge Kavanaugh on the theory that he's about the best nominee that can be expected from a Republican president. Some people argue that the Senate's proper role in judicial confirmation hearings is limited to investigating whether the nominee has the requisite professional qualifications and temperament for the job. If that is the standard, then Judge Kavanaugh should be confirmed unanimously. He has sterling professional credentials and is personally quite likable. I first met Kavanaugh when we worked at the same DC law firm for a summer when we were both law students in the late 1980s and have intersected occasionally over the years. I can't say that I know Judge Kavanaugh very well, but my interactions with him over the years have always been friendly; I share the generally high opinion of his intellect and character.

Should liberal Democratic Senators therefore vote to confirm Judge Kavanaugh? In the not-too-distant past, the Senate appears to have applied a decidedly deferential standard. Under one common articulation of this view, a Senator will vote to confirm a nominee of a president of the other party, even if the Senator would prefer a more simpatico justice, so long as the nominee, in addition to possessing the requisite professional and personal characteristics, is within the ideological "mainstream." Something like this test was applied by all Democrats as recently as the Reagan administration--when Justices O'Connor, Scalia, and Kennedy were all confirmed unanimously--and by most Republicans as recently as the Clinton administration--when Justice Ginsburg was confirmed 96-3 and Justice Breyer was confirmed 87-9.

But even in this earlier period, one could begin to see a breakdown in the norm of deference. The Senators who unanimously confirmed Justice Kennedy only had the opportunity to do so because they had first rejected Judge Bork on what were essentially ideological grounds.

Moreover, taking a longer view, the historical pattern is mixed.  The most comprehensive study of the SCOTUS appointments process is Henry Abraham's Justices, Presidents, and Senators, updated in the 5th edition through the appointees of the second President Bush. Abraham finds that in addition to credentials and temperament, both personal connection to a president and ideology have been important in presidents' decisions of whom to nominate and that ideology also frequently plays a role for Senators.

But when they pay attention to ideology, do Senators vote their true druthers or only screen for mainstream viewpoints? My view, for what it is worth, is that the "mainstream" standard continues to apply, but that increased party polarization makes the concept misleading in the current context. Judge Kavanaugh is undoubtedly in the mainstream of Republican appointees to the federal appeals courts, but the river has forked. A mainstream Republican appointee and a mainstream Democratic appointee are ideologically quite distant.

That claim requires clarification. After all, many cases decided by the federal appeals courts and the Supreme Court are unanimous or break down on non-ideological lines. Even seemingly sharp methodological differences between, on the one hand, self-styled originalists and textualists and, on the other hand, living Constitutionalists and purposivists, frequently turn out to be more a matter of style than substance. That is especially true of the sort of currently fashionable originalism that operates at a sufficiently high level of abstraction to permit courts to disregard the concrete expectations of framers and ratifiers.

But precisely because contemporary judicial methodological conservatism is often functionally indeterminate (as is methodological liberalism), the truly divisive issues -- abortion, gay rights, gun regulation, affirmative action, etc. -- tend to divide judges and justices in the same ways that they divide Americans generally and Senators especially. Seen in this light, it is hardly surprising that Republicans went "nuclear" to change the cloture rule for Supreme Court nominees during the Gorsuch confirmation process. If 60 votes were required for confirmation, then no one could be confirmed except on the rare occasions when the president's party had 60 Senators (or close to 60 Senators if one figures on a handful of defectors from the other party).

I think a fair case could be made for a 60-vote threshold and a norm of modest deference, in which a Senator votes to confirm nominees of the other party if they are within a standard deviation of his or her own views about the law. That would generally result in the appointment of center-right and center-left justices.

But that world is gone, and Democratic Senators who think they can will it back into existence by pretending it still exists are even more naive than Susan Collins thinks her constituents are. Accordingly, we should expect Judge Kavanaugh to be confirmed on a more-or-less party line vote. We should also expect that over time the polarization we now see in Congress will spread to the Supreme Court. Indeed, it pretty much already has.


Shag from Brookline said...

I posted this on the preceding thread:

Blogger Shag from Brookline said...
This is from a 9:00 AM Daily Koss report:


NBC is reporting, that Kavanaugh wasn’t just Trump’s pick from the beginning, he was picked before the beginning. Kavanaugh wasn’t even selected by Trump. He was picked by Anthony Kennedy. As part of the unprecedented talks between Trump and Kennedy to net the justice’s retirement, Kennedy was promised that Trump would name his former law clerk to take his chair. It was that reassurance that pushed Kennedy to announce his retirement. There was never a moment of doubt concerning who was going to be picked.


Hard to believe, but disturbing if true.

9:34 AM Delete

Joe said...

There are various moments in history where there was a strong clash between the Senate and the executive regarding Supreme Court picks, at times (including Taney's first nomination) they were even blocked. The justice chosen at certain times was not seen as simply the choice of the executive, but also the Senate had a big say (much more true for lower courts). For instance, it was once said that Hoover was give a list of one name, Cardozo, to replace Holmes. And, even the justice was confirmed, there was some cases of strong dissent.

This did occur more in recent decades, as a result of various changes in political reality, part of the way the Constitution works over time (sometimes dismissively labeled a "living constitution"), but it happened before. And, the system in place makes that logical. It is a political system, political actors nominating and confirming.


The rules here have to be largely decided by political processes. The "mainstream" label has some value. And, yes, it has not been applied equally at various times. Garland was a good pick that both sides praised. Kagan was someone that both sides praised in the academy. One was blocked, one got a few spare Republican votes. Roberts had a 78-22 vote. Alito was closer; 58-42, but he was (unlike Kagan) a swing vote at the time, replacing O'Connor, and as seen by various areas, was a clear shift to the Right.

Kavanaugh has various problems, particularly in the area of executive power at a time when that is particularly a matter of concern. He is basically prime Federalist Society bait. There is little reason even in different circumstances for Democrats to support this guy. Any "polarization" by this point is not their making. As to some 60 vote threshold, Alito wouldn't have met that (though cloture was met).

Elon said...

It strikes me that there are two distinct categories within the "divisive issues" you posit. First, there are issues where constitutional and policy frequently views coincide, but are not actually linked outside of political and demographic concern. For example it isn't irrational per se for a political liberal who would vote at the polls for unrestricted access to abortion to hold the view that Roe is wrongly decided as a constitutional issue, or for a political conservative who, given the chance, would vote to ban abortion to hold the view that Roe ought to be upheld under stare decisis. It just so happens that people who hold those kinds of views are few and far between because constitutional views have become a form of political war paint--you just don't go around wearing the other side's.

I think, though, that there is a separate category of divisive issues where the linkage between constitutional and political views is direct, with Citizens United and Bush v. Gore as exhibits A and B. There's nothing particularly divisive about the actual subject matter of Citizens United--free speech rights for corporations--the problems start with the result, which, at least to one side, seems to be politically driven. It's too bad that there may not even be a judge to nominate who Democrats might accept under the rubric of ideologically but not politically conservative--one who might, for example, vote to overturn Roe, but also Citizens United--and Kavanaugh certainly is not that judge. After all, even CJ Roberts is widely viewed as at least partly a political actor by the political left.

David Ricardo said...

So, the Fix was in, not difficult to believe what Shag is reporting. One also assumes that the Fix is in with respect to Roe, Kavanaugh will not vote to overturn but will side with every state regulation that effectively puts abortion services out of those states which do not want them. In other words, de facto overturning Roe vs de jure not overturning. Kavanaugh is a smart enough politician to know that direct overturning of Roe would be politically bad, but that stealth overturning works. Like Alito, Thomas and Gorsuch he will approach his role on the Court as a political one, installing his political agenda. Sorry folks, the Court is not a Court of justice.

One interesting point is that Mr. Kavanaugh has spent his working life, other than a short stint with a private law firm, on the government payroll and will now spend the rest of his working life on the government payroll. He will, of course, use his position on the Court to deny basic government benefits to those who need them, under the conservative rubric that providing support for those who need it just weakens them and the moral thing to do is to make them stand on their own without government aid.

Of course that does not apply to white Yale men.

Joe said...

Lose a Kennedy, gain two clerks (who went to high school together).

Good carpool guy, I hear.


Anyway, the comment citing the possibility of a pick for whom the Dems will sometimes win does to some degree explain Kennedy or someone like Byron White (against abortion rights, but supporting liberals on certain issues; that would be someone Republicans might like).

Eric Segall pushes a 4-4 Court, split by ideology. I prefer a 3-3-3 Court, with some true swing justices who don't simply split by simple ideological lines. For instance, someone who would find a national DOMA a violation of federalism even if they would think same sex marriage itself should be left to the states. Justices do at times surprise, but the number of 5-4 opinions are big issues was significant last term.

Shag from Brookline said...

Daily Kos' APR feature today (7/11/18) features several takes on the alleged "fix" between Trump and Kennedy, including SCOTUSblog's view that "it's almost certainly false." I'm not aware of a Trump tweet as yet claiming that NBC's report is "Fake News."

And today's NYTimes reports on PR efforts on behalf of Judge Kavanaugh by almost all of his former clerks. Some cynics might suggest resume building by former clerks. Is that an occupational addiction/hazard?

By the way, should the alleged "fix" be addressed in Senate confirmation proceedings? If there were a "fix," what were Justice Kennedy's possible motives' goals?

Michael A Livingston said...

I suspect the Democrats' real purpose is to string out the procedure,raise consciousness among their voters, and hope that something surprising comes up. The latter is non entirely impossible. It's happened before.

David Ricardo said...

The Fix, if it did occur was certainly not an overt agreement. Instead it would have been a 'wink, wink, nod, nod' type of thing whereby Trumper talked to Kennedy about giving strong consideration to Kavenaugh and Kavenaugh would have talked about respecting precedent, so that the participants all knew what the deal was without ever describing it or committing to it.

These are venal people we are dealing with here, not stupid people.

Shag from Brookline said...

Perhaps "respecting precedent" might be important to Kennedy, but how about to Trump and his base?

Conspiracy theories sometime occur on the left and some make reference to Justice Kennedy's son who has had a big job with Deutsche Bank in its real estate financing and is well known to the Trumps for financing Trump when other banks wouldn't and the DOJ has had ongoing investigations of Deutsche Bank for Russia money laundering resulting in big fines. I don't think the investigation is over. Overlay on this Russia oligarchs paying big bucks for Trump properties and the Special Counsel's investigation of Trump campaign connections with Russia and 2016 election interference, there is much fodder for conspiracy theories. It might fit in with Jonathan Chait's recent "worst case" scenario lengthy article in New York magazine on the Russia Connection.

Shag from Brookline said...

Here's the URL for Jonathan Chait's "worst case" scenario:


It is lengthy, and scary.

Shag from Brookline said...

The WaPo today (7/12/18) seems to discount the alleged "Fix" conspiracy theory connection re: Justice Kennedy's son at Deutsche Bank.

I would note that while the Bank paid big fines for money laundering, no executives of the Bank were criminally charged.