Wednesday, August 08, 2018

How to Retaliate for Garland

by Michael Dorf

In my latest Verdict column, I explain why I declined to sign a letter from 72 former law clerks of Justice Kennedy in support of the confirmation of Brett Kavanaugh to the Supreme Court. To summarize, I argue: (1) Kennedy clerks do not have any special insight into Kavanaugh's qualifications in virtue of having clerked for Kennedy; (2) the letter purports to reflect a set of politically diverse views, but in fact nearly all of the signers are very conservative; and (3) the letter tacitly assumes without defending the controversial position that the role of the Senate should be limited to examining the professional credentials and judicial temperament of the nominee. Here I want to elaborate on why I think that assumption is wrong under current conditions.

As I explain in the column, there is a plausible argument for a norm under which Senators vote to confirm any professionally well-qualified nominee with an appropriate judicial temperament, regardless of party or ideology, so long as the nominee is not "extreme." The worry is that absent such a norm, we will end up with prolonged vacancies during periods of divided government and extreme nominees who lead to intra-SCOTUS polarization once confirmed on party-line votes. That's a real danger that appears to have been realized, I acknowledge, but Democrats who vote to confirm Kavanaugh in the hope of thereby restoring a reciprocal norm of bipartisan deference to the president are suckers.

Elaborating on a suggestion of David Leonhardt in the NY Times, I advocate what game theorists call tit-for-tat. In tit-for-tat, one cooperates with a rival so long as the  rival cooperates, but if the rival unfairly takes advantage, one retaliates proportionately. As I cash out the strategy in the current context, Democrats need to retaliate for the Republicans' treatment of Merrick Garland before they can or should vote for any Republican president's right-of-center nominees. Voting against the confirmation of Republican nominees is necessary but not sufficient. So long as those nominees take their seats--as Justice Gorsuch did and as Judge/Justice-to-be Kavanaugh likely will--the Democrats will not have retaliated successfully. Successful retaliation requires actually blocking a Republican nominee.

Yet how can Democrats do that? It is conceivable that something could emerge in Judge Kavanaugh's record that would be sufficient to give pause to all of Senators Collins, Murkowski, Heitkamp, Manchin, and Donnelly (the two Republican Senators who call themselves pro-choice and the three Democrats from red states who face tough re-election campaigns, all five of whom voted to confirm Justice Gorsuch). That would have to be one hell of a smoking gun--something on the order of a memo from Kavanaugh to President Bush saying "waterboarding is torture but do it anyway, and also, by the way, I'll definitely vote to overrule Roe v. Wade if I'm ever a Supreme Court justice."

In the much more likely event that the Senate confirms Judge Kavanaugh, the Democrats will still be waiting for an opportunity to retaliate successfully for the Republicans' treatment of Judge Garland. That opportunity would not likely arise until Democrats control the Senate during the second half of President Trump's term or (gulp/ugh!) a second Trump term. Depending on the outcome of various elections and the timing of Supreme Court vacancies, the opportunity for successful retaliation might not arise at all for a decade or two.

That, in turn, raises a question about the utility of the tit-for-tat strategy in the current context. In the computer simulation settings in which tit-for-tat has proven itself effective, the penalty of non-cooperation immediately follows the offending conduct. In the real world, a delay on the order of ten or twenty years strains the theory. For one thing, many of the Republicans who denied a hearing to Judge Garland would no longer be serving in the Senate by then. For another, to some extent the strategy aims at the public, who have a notoriously short attention span. It is easy to imagine people--including journalists--in, say, 2032, being utterly befuddled when Democratic Senators justify their refusal to provide a hearing for a Republican president's Supreme Court nominee as retaliation for the 2016 treatment of Judge Garland. "Merrick who?," one imagines people saying.

Democrats may have an opportunity to take other kinds of retaliatory action before the stars align to produce a Republican presidency, a solid Democratic Senate majority, and a Supreme Court vacancy. As early as 2021, one could well imagine a Democratic president and Democratic majorities in both the House and Senate. At that point, various commentators have suggested, the Democrats should respond by adding two seats to the Supreme Court to counteract the Republicans' denial to Garland of his seat. (Two new seats, rather than one, would be required to restore the status quo ante: one seat would "cancel out" Gorsuch; the other would enable the Garland replacement to cast liberalish votes.)

The most straightforward version of such a program would simply add the two seats. A variation proposed by Ian Ayres and John Witt would have the two new seats expire after 18 years. Why 18? Apparently because under a proposal that Ayres and Witt also support, all justices would be limited to staggered 18 year terms, thus ensuring that a vacancy would arise every two years and eliminating the accidents of timing in appointments. (A justice who died or retired before the 18 years were up would be replaced by a justice who would complete that term, not a full one.) The original version of this proposal--by Paul Carrington and Roger Cramton--would have been accomplished by statute, but recognizing its vulnerability to constitutional challenge, Ayres and Witt propose adopting it by constitutional amendment if a statute is inadequate to the task. Although I too would support such a change, I'll set this more radical proposal aside here, because it is not a form of retaliation for the Republicans' treatment of Judge Garland. By contrast, the "court balancing" plan of adding two time-limited Supreme Court seats during a period of Democratic dominance would constitute such retaliation, as would the proposals to add two conventional seats.

What can we say about the proposal to add two seats and the Ayres/Witt variation? Consider four observations.

(1) These proposals are best viewed not as alternatives to tit-for-tat but as alternative forms of tit-for-tat. The term tit-for-tat implies that the game-theoretical responder does exactly to the bad actor what the bad actor did first. That works in the highly stylized computer models in which tit-for-tat has shown itself to be an effective strategy, but in the real world, actors often have different capacities. To give a current example, when the US puts tariffs on Chinese steel and aluminum, China does not respond by putting tariffs on US steel and aluminum, because China does not import substantial quantities of US steel and aluminum. Instead, China responds by putting tariffs on US agricultural products such as soybeans. The responder in a real-world tit-for-tat situation responds proportionately but usually not identically. Likewise here, if Democrats think that it could be decades before they are able to respond to the Republican treatment of Judge Garland by treating a Republican nominee identically, they may prefer some other form of retaliation, such as the addition of two seats to the Supreme Court.

(2) But would it end there? Responding to the Ayres/Witt proposal, Ilya Somin writes:
What matters is how the "court-balancing" plan will be perceived by Republicans. If they agree that it is merely a one-time "temporary intervention" justified by the GOP's actions against Garland, then the Ayres-Witt ploy will work. But if they see it as a major escalation in the judicial nomination wars, then they will almost certainly retaliate in kind as soon as they get the chance. I think it's pretty obvious that the overwhelming majority of Republicans (as well as many independents) are likely to take the the latter view. They won't be mollified by the supposed distinction between "court balancing" and "court-packing," in part because they really aren't all that different, and in part because they don't believe that blocking Garland was wrong in the first place. At best, the GOP might limit its retaliation to appointing two new 18-year justices of their own, as opposed to life-tenured ones. At worst, they could choose to escalate further, such as by appointing justices to longer terms, or by appointing a larger number of new justices than the Democrats added.
I agree with Somin. Even if Democrats think that court-packing or court-balancing is simply tit-for-tat, Republicans will perceive it as escalation, to which they would almost certainly retaliate proportionally or by escalating further. And because the whole point of game theory is to act in a way that anticipates competitors' responses, that makes court-packing/balancing a dangerous strategy.

(3) There is also something peculiar or at least highly premature about Democrats talking about increasing the size of the Supreme Court now, when they control neither house of Congress nor the presidency. By legitimizing court-packing, Democrats run the risk of giving Republicans cover to do it immediately. I don't think that's likely, but it does strike me as odd to undercut one of the few longstanding norms regarding judicial appointments that is holding for now.

(4) Using the "nuclear option," Democrats abolished the 60-vote cloture rule for lower court and executive branch nominations when they last held the Senate. Then, during the Gorsuch confirmation process, Republicans abolished it for Supreme Court nominations. Although President Trump has occasionally tweeted his support for doing away with the cloture rule for ordinary legislation, Senate Majority Leader Mitch McConnell has thus far resisted. One might be tempted to think that if McConnell wants to keep the cloture rule, then it must be good for Republicans and therefore bad for Democrats. If so, then if the Democrats do retake the presidency and Congress in the 2020 elections but have fewer than 60 seats in the Senate, they should deploy the nuclear option again to abolish what's left of the cloture rule. Doing so would allow them to add two seats to the Supreme Court and would more generally make it easier to enact the next Democratic president's agenda.

Yet it is not obvious that abandoning the cloture rule would be good for Democrats. Perhaps McConnell's objection to doing so rests on respect for Senate traditions rather than partisan considerations. Or perhaps it rests on partisan considerations but he is mistaken in his overall judgment. On the basis of first principles, it is not clear where the advantage lies.

On one hand, other things being equal, Democrats are more likely to want government to act while Republicans are more likely to want to block government action. Against that baseline, it looks like the cloture rule serves Republicans' interests more than Democrats', because it raises the threshold required for action.

Yet the baseline is not government inaction. The baseline is the current legal status quo. A high threshold for government action means a high threshold for repealing legislation as well as enacting new regulatory programs. Preserving the 60-vote cloture rule for ordinary legislation makes it harder for Republicans to repeal or weaken the Endangered Species Act, the Clean Air Act, Social Security, and numerous other laws that Democrats cherish. And given that the Senate overweights sparsely populated red states relative to blue states, Democrats might conclude that over the long run they have more to fear from Republican-controlled Senates than to gain from Democratic-controlled ones.

Whatever judgment Democrats make about the cloture rule for ordinary legislation, they ought to make it based on a careful assessment of costs and benefits across the entire range of potential consequences. If court-packing is thought to be otherwise justified, it might not be justified if it can only be accomplished by first abolishing the 60-vote threshold for ordinary legislation.

* * *

I am left to conclude that there may be no effective way for Democrats to engage in effective tit-for-tat retaliation for Republicans' treatment of Judge Garland. If so, however, that does not mean that Democrats should simply capitulate by pretending that we live in ordinary times. So long as the Garland wound remains reasonably fresh, non-cooperation should be the order of the day.


Joe said...

Certain conservatives that at times might be called "Never Trump" types upon criticism (at times of a sort of kneejerk Twitter variety) suggest their bona fides by noting things like saying they supported Garland or the like. A Volokh Conspiracy member comes to mind (Jonathan Adler). And, he cited the now infamous Lisa Blatt "liberals for Kavanaugh" op-ed as a way to move on from "both sides do it" confirmation wars.

Dorf's column cited David Leonhardt's argument that Republicans have "done it" more. Norman Ornstein and Thomas E. Mann have written much on how Republicans overall have screwed over the legislative branch more. Anyway, unilateral disarmament is rather naive in my mind. If you think Garland was wrong, a strong response is warranted. Simplistic "eye for an eye" (not used as a positive) language here is misguided.

Democrats as a whole were right to strongly oppose Gorsuch in part based on who his views merely on principle. It also was a useful partisan political move. I can imagine the reaction from the base if on such a basic point of principle they just gave in. I'm more open to strategic retreats and it would have really pissed me off. Not to the degree I'd vote some protest candidate or stay home, but you know that is a danger these days. Anyway, the out party on basic matters of principle, including on ideological grounds, should vote "no" in these cases. Out parties should play the long game there but that still warrants "no."

The long term "game theory" referenced in this comment is open to debate along the edges and I'll not conclusively state a view. Nonetheless, I do think talk of "court packing" by some (and that is all it is -- talk by some) has some value. It is a warning, if nothing else. This horrifies you? Well, fine. Something quite seriously wrong occurred in our view and something needs to be done to balance things out. It is also a warning to the Roberts Court not to go TOO far.

I don't like the idea of court packing but just waiting a decade or more to get the seats in effect stolen or obtained illegitimately (Trump's legitimacy is deeply in question) as conservatives age (hoping Breyer or RBG remains healthy too) isn't much of a solution in my book. The left leaning professors I have seen simply horrified at the idea of court packing better have some solutions. A term limit of future justices, btw, probably doesn't quite do it.

Joe said...

("you" and "left leaning professors" are used generally and are not meant to apply to Michael Dorf particularly)

Ben Alpers said...

A very minor quibble: McCaskill needs to be added to that list of endangered Senate Dems who have a potentially politically tough choice to make on Kavanaugh.

David SLS '96 said...

How about Quid Pro Quo instead of Tit For Tat? I'd advocate a movement among Democratic Senators to the following: Judge Kavanaugh, I shall vote in favor of your confirmation if you will pledge, on your honor, to limit your term to 18 years.

Unknown said...

But Joe--if anybody, it relates to Dorf with great particularity. There's no one more bigoted in his leftist views than Dorf.

David Ricardo said...

Mr. Dorf is correct, there is no way for the Democrats to retaliate for the Garland nomination. Reality is, the Republicans stole it fair and square.

The situation illustrates the random nature of life, specifically that Supreme Court vacancies arise in largely a random process and so their timing cannot predicted or controlled. Of course, Republicans have placed their thumb on the scales of chance with their refusal to consider President Obama's nomination of Garland and their removal of the 60 vote requirement for confirmation. (Make no mistake, even if Dems had not removed that requirement for other appointments there is no way McConnell would not have removed it to confirm Gorsuch and Kavanaugh.)

The composition of the Senate is also rigged by the mistake of the Founders to give each state two Senators regardless of population. The odds of a Democrat takeover of the Senate in 2018 are at least 50 to 1 against, as I have shown earlier. But even if the Dems do win the Senate in 2018 or even 2020, exactly what conservative vacancies would they expect to have the opportunity to fill?

The gods of chance are angry at the Democrats, probably because the Dems think being right is enough to win elections against a corrupt opposition that will bend the rules in any way possible. The solution to better goverment is for better people to win elections. Losing close, as the Dems have done in every special House race but one since Trump took over is still losing.

Joe said...

"probably because the Dems think being right is enough to win elections"

Doesn't seem that way around here. A big GOTV presence, including signs and heavy campaign commerce presence, is being used by two local incumbents.

Being right isn't going to make safe seats of the competition go your way. Takes a lot of help, like Roy Moore level competition. Being very close is not winning but it is a sign that you will on average have a good shot in seats that aren't as safe for the other side.

When Bush won in 2000, a liberal Republican switched and threw the Senate the way of the Democrats. But, Blue Dog Dems still supported certain Bush policies. One way to "retaliate" when the Senate in 50-49 is simply refuse to do that sort of thing. You will have a few victories that way though the kneejerk Republican Party of today has fewer independent minded types who will help you out there. You also can do things to weaken those in power. This was done against those in power over the centuries and it has some bite.

The mentality that the Dems are more sad sack suckers they actually are shown by some underlines the importance of standing their ground here. And, when the Dems win back the House and eventually even the Senate, have long memories. If "what about Estrada" -- talking about filibustering a lower court judge 15 years ago is still a thing for some or even "Bork as martyr," I think "GARLAND!" five years later or so isn't going to be ancient history.

Unknown said...

Mike, I have no idea why you agree with Somin. Sure, Republicans will say that they believe that adding two seats is unfair in retaliation for the blocking of Garland. That’s because Republicans will say and believe anything that works for them. The blocking of Garland was shameless. The Democrats capitulated because they thought the November election was in the bag, Garland or some more liberal alternative would be renominated, and life would go back to normal. But the blocking of Garland wasn’t normal. The proper tit for tat was to block Gorsuch. The Dems said they couldn’t do it, but they could have engaged in massive civil disobedience. They didn’t do that because they’re cowards, and most of them frankly don’t care about the direction of the Court. They just want to get re-elected. In fact, it suits them for Kavanaugh to be confirmed, because it gives them something to run on to keep their seats. The refusal to bring Garland to a vote was the end. It’s chaos now, and tit for tat won’t work as a strategy to keep the Parties in line. The Democrats should starr thinking more like Republicans and adopt the strategy of using everything at their disposal to block everything that the Republicans propose. There is nothing left now but a no-holds-barred fight.

Greg said...

Another, more minor seat adding option (assuming the court stays 5-4 conservative) would be to add a single seat, and fill it with a left-leaning democrat. That reduces the court-packing political argument, and Democrats can make the case that that's the way it should be, half conservative, half liberal, and needing a vote from the other side to make precedent.

This would still be retaliation for Garland, but can be argued on principle as well.

Michael C. Dorf said...

Lots of interesting discussion here. I'll just respond flippantly to "Unknown" and then more seriously to Sam

1) Unknown: I think you mean that there is no one more BIASED in his left-wing views than Dorf, not that there is no one more BIGOTED. Perhaps you have evidence that, in addition to being an obvious pinko, I am also a bigot, but that's something different. You really should be more precise in your red-baiting. Also, congratulations on your courageous decision to post anonymously. It greatly enhances your credibility.

2) Sam: I have heard (via Twitter and otherwise) from various conservatives whom I respect as sincere on this point that they regard Democrats as at least equally responsible for the escalation as they regard Republicans. I think they're wrong, but I agree with Somin that if the point is to anticipate what your opponent is going to do, you need to be able to take your opponent's perspective. At this point you might say that it only matters what the elected officials do, but: a) the elected officials are at least somewhat responsive to public opinion; and b) much as I disapprove of McConnell's substantive agenda and tactics, I have to acknowledge that he has not thrown all prior norms out the window. Why aren't Republicans packing the Court right now? Why didn't they fire the parliamentarian and do away with the limits on what can be passed via reconciliation in order to fully repeal the Affordable Care Act? You can posit tactical/strategic explanations for every individual action, but the simpler explanation is that enough Republicans actually care about some of the same norms as Democrats that it would be dangerous to undercut those norms further.

Michael A Livingston said...

Just a reminder of something the author once told me: when you begin to escalate it is very difficult to control the escalation. For example, the Allies felt that the bombings of Hiroshima and Nagasaki were justified "retaliation" for Pearl Harbor (my example, not yours). Now it seems less clear. At very least, you have to have a clear understanding of your opponent and what they will do next. I'm not sure this is true of either side in the present case.

Joe said...

"Democrats capitulated"

I think the Dems thought Trump would lose, and Democratic voters over the years were less passionate about the courts (and those who were probably thought Trump would lose & wanted Clinton to have her own pick anyway, one more reason I don't think picking someone else would have mattered much) but they didn't really have any power here. Republicans controlled Congress. They didn't suddenly say "fine." The only way they could win really was in November 2016. Which unfortunately for the country they did not.

Unknown said...

Thanks for the reply, Mike. I believe you when you say that your conservative friends sincerely believe that the Democrats were equally responsible for the Garland escalation. But I am enough of a cynic to believe that your friends are massively self-deceived. Their sincere belief is self-serving, and no one wants to think that they have endorsed a serious violation of the norms. They very badly want to believe that what they did was justified, even though it was, in modern times anyway, unprecedented. They lost the Supreme Court death lottery, and then cried foul. They bought themselves an issue to run on, the Democrats were lazy and thought Clinton would run away with the election, and now we have not just one flipped seat, which is bad enough, but the loss of a seat that will drive the court seriously rightward, with the potential to flip one or two more “liberal” seats before the end of the Trump or Pence presidency. All of this because the President is not chosen in the way that Senators are chosen, by majority vote. I submit to you that the system is well on its way to breaking down completely. First conservatives discovered that 60 votes would be needed in the Senate to get anything done. Then they got rid of this when it suited them to do so. The hypocrisy is shocking. The conservatives are not packing the Court because they are already packing it. Garland would have permitted both Breyer and Ginsburg to retire and be replaced with relatively youthful moderate liberals. As it is, we are staring at the very real possibility of a 7-2 conservative majority in the relatively near future, with no prospect of flipping a conservative seat for 20 years. The balance on the Court is gone. The Court will be as far away from the majority of the people as it was in the 1930s. As for the ACA, the conservatives know that they can strangle it slowly, by forcing premiums up and making it unpopular in the relatively near term. After the election, nothing will be done to shore up the ACA, Trump will veto anything that comes out of Congress even if the Democrats retake both chambers, and much can be done by the executive branch to undermine the ACA. The conservatives know what they are doing. They play the game hard, and they aim to win. As I see it, there is nothing left but civil disobedience.