Tuesday, July 03, 2018

The Supreme Court Free-for-All is Off to a Very Bad Start

by Neil H. Buchanan

For obvious reasons, the new Supreme Court vacancy has been dominating the news for the past week.  In the meantime, Justice Kennedy's retirement seems to have raised Donald Trump's spirits, and even though we have not completely forgotten about Trump's cruel immigration and refugee policies, the "Who will he pick?" story is exactly the kind of cliffhanger that the former reality TV huckster loves.

The media have all kinds of reasons to pump up the Supreme Court story, too, but I continue to believe that there really is no mystery about what will happen, as I will explain below.   I will then critique what is in the running to be the worst fact-check of all time.

In my new Verdict column today, I offered a very sad assessment of Kennedy's legacy on the Court.  I was reluctant to reach the conclusion that I did, but I had to say that the most recent Court term was disastrous for Kennedy's place in history.  Prior to this year, it was still possible to view Kennedy as something of a conservative independent, with that reputation propped up by a couple of high-profile heresies that liberals appreciate.

Update: Let me emphasize here, as I did at length in the column, that the views I express here are entirely my own.  Professor Dorf’s name is on the blog, but we in no way collaborated on this column, nor does the column’s publication on this blog constitute anything resembling an endorsement of its contents.

Kennedy was no Sandra Day O'Connor (indeed, O'Connor was not the heretic that some claim she was), but his very occasional deviations from right-wing dogmatic positions led people like me to imagine in every high-profile case that he might do it again -- even though he rarely came through.  For example, he not only voted with the conservatives on the first Affordable Care Act case, but he "went full broccoli" by agreeing with all four conservatives (as dicta, but still) that the Commerce Clause has an action/inaction distinction.

In any case, interested readers can read my assessment on Verdict, where I argue that the 2017-18 term -- and especially the Muslim Travel Ban case, this generation's Korematsu -- has indelibly stained Justice Kennedy's place in history.  That he might have (at least according to published reports) coordinated with the Trump White House on his departure also provided an extra-judicial additional taint on Kennedy's now-former reputation as a straight shooter.  Again, I was reluctant to reach the harsh conclusion that I reached, but it was unavoidable in light of the evidence.

With that analysis behind me, I want to offer here some quick thoughts on the early media coverage of the process of finding Kennedy's replacement.  As I noted in the second paragraph of this column, I do not think that there is any doubt about what will happen.  Trump will eventually nominate someone who is at least as conservative as Neil Gorsuch and Clarence Thomas, and after a great deal of shouting and posturing, he or she will be confirmed by every voting Republican senator.

Why am I so sure about all fifty Republicans (leaving out John McCain, whose vote almost surely would not be needed either way, but who in any case is apparently too ill to vote) will fall in line and vote for Trump's nominee?  Largely because the last time anyone in the Republican Party did anything to displease Trump was the Senate vote to keep the Affordable Care Act alive, with all 48 Democrats being joined by McCain, Susan Collins, and Lisa Murkowski.

Since that time, the biggest political vote was on the tax bill in December.  Even though there was every reason -- procedurally, even if one was not horrified by the substance -- for some supposedly non-toadying Republicans to vote no, and even with votes to spare, not one Republican deviated from the party line.  More significant, perhaps, are all of the times when Republicans have done nothing but mumble when Trump committed yet another egregious act.

But are we not being told that Susan Collins, whom media types insist on calling "moderate" by ignoring what that word actually means, is making noises about making sure that Kennedy's replacement does not vote to overturn Roe v. Wade?  We definitely are being told that, and some people might even believe it.  As she did with the tax bill, however, I predict that Collins will accept some pathetically minimal gesture from Trump or Majority Leader Mitch McConnell, and that will be that.  When the new justice starts to make Clarence Thomas look like a lefty, Collins will express concern.  And that will be nice.

My prediction could be wrong, of course, but there is simply every reason to think that Collins's supposed independence is a pose.  And even if she tries to get something from Trump or McConnell, there is no way that she can enforce any promises that they make.

Meanwhile, it is fascinating in its way to note that the pro-Trump commentators are again using a Supreme Court pick as an opportunity to say that their support for him was a boon to conservatism.  As one example, a former George W. Bush advisor who (unlike his former boss) has gone all in on Trump wrote a column in The Washington Post last week saying that Trump's voters should feel "vindicated" by what has happened with the Court.

I will spend only a moment on this, because it is well trodden ground, but it still amazes me that anyone would bother with this silly argument.  Let us say that Republicans had risen up very early in Trump's term and impeached/removed him from office for obstructing the Russia investigation, for accepting foreign emoluments without Congress's permission, or for any other reason.  Mike Pence becomes president.  Who in the world thinks that Pence would fill Kennedy's seat with a moderate?  Yet Trump's supporters are still busy convincing each other that the "but Gorsuch" argument makes any sense at all.

Seeing that zombie argument spring back to life was annoying, but it was also predictable.  What was not at all predictable was The Post's response to the Democrats having pointed out that the Republicans had stolen the Supreme Court seat now occupied by Gorsuch, yet those same Republicans are now calling for a quick confirmation before the midterm elections.

This is not to say that I expected the Democrats' argument to have any impact.  The Republicans have the votes, and as I noted above, that is that.  Even so, I was glad to see Democratic leaders saying, in essence, "Hey, didn't Mitch McConnell justify blocking Merrick Garland from even getting a hearing by saying that 'the people' should decide at the ballot box?"

But sure enough, The Post's resident Frank Bruni, Aaron Blake, quickly wrote a column claiming (at least according to its headline) that Democrats were wrong about all of that.  Because I have no patience for Blake's particular brand of "Let's all us Democrats unilaterally disarm, 'kay?" punditry, I did not bother to read past the headline.  But when the newspaper's fact-checker weighed in, I was simply astonished.

In a column on June 27, Glenn Kessler concluded that "Democrats are simply spinning a false narrative."  Why?  Because "the Republican position, whether you disagreed with it or not, clearly was based on the fact that it was a presidential election year."  Kessler had found a quote in which McConnell had said that the reason to block Garland was because the next president should supposedly be able to choose the new justice, and that was good enough for Kessler.

Of course, Kessler is simply accepting at face value what McConnell said in that quote, treating it as if it were a checkable fact with no context.  Did he say "presidential"?  Yes. OK, case closed.  But that is no better than the absurd logic of the five deliberately obtuse justices in the Muslim Travel Ban case, who insisted on accepting at face value Trump's lawyers' claims that the ban was not based on animus.  Kessler similarly says, "You might disagree with McConnell, but he said what he said."

But that is insane.  McConnell was simply inventing a new "rule," not based in law or custom, by which "the people" should have a voice in choosing the next Supreme Court justice -- even though they already had made their voices heard in the 2012 presidential election, and the duly-elected president had nominated a new justice.  And McConnell was to do what he did because voters had also voted in a Republican majority in the Senate, so he was going to use that fact to steal a Supreme Court seat.

Kessler, then, is looking at McConnell's big lie and saying that it is not relevant today because McConnell sometimes articulated that lie in light of the particular circumstances of that election.  McConnell's real message -- We're blocking this because we can, and we're going to use the excuse of the upcoming election to put a fig leaf over our shame (if we were capable of shame) -- is not fact-checkable, because it was entirely opportunistic.

For a rough analogy, consider Bush v. Gore, in which the controlling opinion asserted that the equal-protection analysis was a single-use ticket that cannot be invoked in the future.  It turns out, however, that the opinion did not exactly say that the case could not be used as precedent.  When a Ninth Circuit panel in 2003 tried to use Bush v. Gore to justify a ruling that went against Republicans in another election-based case, however, the predictable response was: Oh, come on.  You guys know what the Supreme Court really meant.  Don't get cute.

Here, we have a major newspaper saying as a matter of fact that the Democrats are merely spinning McConnell's words, that is, that it is the Democrats who are being too cute.  Kessler might as well have said, "Mitch McConnell once said that he was opposing the nomination of a Supreme Court justice 'because the 2016 election is so close,' which shows that he was talking about the 2016 election, not elections in general.  So Democrats are wrong."

What is especially galling is that The Post has appended an update to the piece that reads: "In response to our query, a [Democratic] spokesman supplied a number of statements from Republicans in 2016 in which they vaguely referred to nominations in an 'election year,' rather than a presidential election year."  In other words, Kessler had cherry-picked a quote in which McConnell happened to use the word president, but that was certainly not the thrust of his argument.  Yet the piece stands by its conclusion that "Democrats are simply spinning a false narrative."

This is actually worse than false equivalence.  This is a reporter using a completely imaginary rule invoked by Mitch McConnell and then treating it as holy writ, to be parsed word by word.  If ever someone missed the real story by pretending that only certain facts matter, this is it.

Does this truly matter?  Maybe it is a coincidence, but Senate Democrats caucused shortly after Kessler's piece ran and decided to drop their public demand that the nomination be delayed until after the midterms.  It is hard to believe that they would have done so if they had gotten a fair hearing from the mainstream press.

But in the end, given what I wrote above regarding the process to come, I guess none of this matters.  Even so, it continues to amaze me when I see journalists going out of their way to miss the point.  Will I ever stop being disgusted?  Why would I want to become that cynical?


Michael C. Dorf said...

Just to be clear, as Prof. Buchanan emphasizes in the Verdict column, his views on Justice Kennedy are his and not necessarily mine. While I agree entirely with the political analysis, here I just want to distance myself from one line in the blog post above: that Justice Kennedy "coordinated with the Trump White House on his departure." From the news accounts I have read, there is a good deal of evidence that the Trump White House attempted to influence Justice Kennedy's decision about when to retire but not much evidence that the attempt succeeded. That is, so far as I can tell, surmise.

Joe said...

The b.s is annoying.

If you want to just argue that whoever has the votes has the votes, so McConnell and the Republicans could do that, get over it, fine. I'll push back but there is a level of raw honesty there. But, that isn't enough. We need b.s.

The same with the abortion thing. Conservatives cared a lot about judicial nominees. One poll but it at something 30% Trump voters thought of special importance. A basic concern here is abortion though it is somewhat of a stand-in for a wider set of things. But, now we are getting hot takes that "who knows" what the nominee will do.

Rick Hasen had a telling tweet in response to one pundit citing the line that candidates aren't being asked about abortion. Basically, no need -- how many Federalist Society members, especially those on some Trump short list -- will even be in doubt there? It's like asking Mets fans their feeling about the Yankees. A few will have positive feelings, but pretty safe to assume otherwise.

Finally, "overturn Roe" is tedious. I think the fairly likely thing there, at least a big enough thing to worry a lot about it, is that the Roberts Court will be very liberal in allowing for regulations, including those that will all but close shop in certain states. One abortion clinic, with a lot of TRAP laws burdening it, in a state is not quite the end of Roe, but it's a big enough step.

(not to say that eventually simply overturning Roe/Casey ain't possible though figure it might take a few terms at least to get there)

Joe said...

Side note.

There has been some push back from some liberal analysts at the "simply nuts" (or whatever term they use) "conspiracy theories" involving Kennedy and Trump. I think people are overcompensating there, especially given upset people need time to process things.

I don't know the full story but there are enough details that are at least concerning and the fact people are upset to me is not crazy.

Neil H. Buchanan said...

I have made changes to the post to clarify the points that Professor Dorf makes in his comment above.

Asher said...

I think it's unlikely that Trump will nominate someone at least as conservative as Thomas and Gorsuch (are there any circuit judges who are more conservative than Thomas, I wonder?), simply because most of the members of the shortlist are a little less conservative. I would not position Brett Kavanaugh much to the right of Roberts; Hardiman is a conservative, but an Alito-esque conservative that doesn't necessarily subscribe to the more exotic flavors of present-day legal conservatism, e.g., a destructive attitude towards the administrative state; Kethledge is at least a little less conservative than Thomas; ditto for Barrett, religiosity (which can be a bit of a double-edged sword -- note that her most controversial article addresses whether Catholic judges like her should recuse in death cases) notwithstanding; finally, I would agree, were Thapar nominated, that he's just as conservative as Gorsuch and Thomas. Seeing no evidence that Thapar is a front-runner, I think it's highly likely that the next Justice will fall somewhere between Roberts and Alito on the ideological spectrum. I also think the midterms, and the identity of who Trump's replacing, make the nomination of an obvious hyper-conservative a little tougher than it was a year ago.

David Ricardo said...

Everyone who reads and responds on this Forum has great respect and admiration for Mr. Dorf, but he needs to recuse himself on an evaluation of Justice Kennedy. Because of his association with the Justice his comments, as he admits, do not meet the objective standards of commentary.

Justice Kennedy, version 2.0, has been a disaster for the Court and himself. He has ruined his legacy and will now be remembered for the triumphs he has allowed the far right to win at the Court. One sincerely doubts that if the positive decisions of Kennedy 1.0 had come to the Court in 2018 that Kennedy would have repeated his championing of reproduction rights and the equality for the LGBT community.

Shag from Brookline said...

Justice Kennedy's legacy is in the eye of the beholder, including those perhaps beholden. I respect Mike's thoughts on Justice Kennedy as I respect the thoughts of others that may differ, such as Mark Graber in his recent post at Balkinization. There are varied views of Justice Kennedy's judicial legacy as well as his retirement timing that has accommodated Trump politically. What Mike sees as "surmise," some see as perhaps leading to more information. Vanity Fair, in addition to the NYTimes. has some interesting moves on Justice Kennedy by Trump and his family and JonathanTurley provides some insights as well. Perhaps surmise may turn into surprise. Much more will be written about Justice Kennedy's judicial legacy as well as his timing.

Shag from Brookline said...

When I was a kid growing up in Boston in the late 130s and 1940s, I was an avid reader of the sports sections of the many Boston newspapers. Horse racing was a big deal so handicappers were given prominent space in these sections, with commentary - including odds - on each entry in a race. After a while, the commentary would be downright comical, such that I would read such, although I was not a fan of norse racing and not a gambler, for sheer entertainment back in those days pre-TV. I thank Asher for reminding me of those days. Can we expect more handicapping prior to the July 9th announcement by Trump?

Joe said...

Who will get the rose in the new Trump reality program?

Shag from Brookline said...

The Take Care Blog's Daily Update is not on July 4th holiday status and features numerous links to potential Trump nominees to replace Justice Kennedy. Will Trump read these? I don't plan to.

Here's Groucho on a rose:


Shag from Brookline said...

Off Topic: Over at the VC Randy Barnett and Ilya Somin have separate posts on the Declaration of Independence. Each is an originalist. But it's not clear that either employed original public meaning originalism regarding their respective views on the meaning of DoI. The DoI was of course an important document in America's history. As I recall the 1787 Constitution does not specifically incorporate the DoI. I haven't rechecked the Articles of Confederation to see if it referenced the DoI with any specificity. Yesterday's NYTimes editorial focused on the Constitution, with its original sin, and the Civil War that led to a new framing with the Reconstruction As., including observations of some of the positive areas of Justice Kennedy's judicial legacy on individual rights based on the 14th A, but noting that it took many decades following the Reconstruction As before Brown v. Bd. of Educ. (Unanimous, 1954) and the civil rights movement it triggered. Back on topic, the editorial expressed concern with what might follow Justice Kennedy's retirement, thus the editorial title "America Started Over Once. Can We Do It Again?" Hopefully Trump won't make America have to start over again.

Joe said...

Looking it up, Eric Segall's new book "Originalism as Faith" is due on 10/31/18 according to one estimate. Randy and company can dress up as their favorite founder.

Shag from Brookline said...

Here's a title variation on my ConLaw Prof.'s 1955 speeches that might be considered for a series on originalism:

"Vagaries and Varieties of Originalism in Constitutional Interpretation"

If there were a second constitutional convention resulting in a vastly revised constitution, to what extent might that eliminate originalism prior thereto involving similar text? Eric might suggest that originalists would be chanting "Give me that old time originalism."

Shag from Brookline said...

Further on the DoI and originalism, check out:


"Originalism And The Fourth Of July 07/04/2018 by Scott Douglas Gerber

A link and excerpt are available at the Originalism Blog. The author distinguishes conservative originalism and liberal originalism, including referencing original intent of the DoI.