Wednesday, September 23, 2020

Why Do Republicans Bother To Lie About Their Judicial Appointments Strategy?

 by Michael C. Dorf

In an insightful essay Monday on Balkinization, Columbia Law Professor David Pozen dissects the terrible reasons that Republican Senators have given for why it was okay for them to hold open the seat that became vacant when Justice Scalia died in February of an election year but it's somehow imperative to fill the vacancy occasioned by Justice Ginsburg's death in September of an election year. As Professor Pozen shows, the real, operative "McConnell Rule" is revealed by the Senate Majority leader's actions: "block as many Democratic nominees and confirm as many Republican nominees as is politically feasible."

I completely agree with Professor Pozen's analysis, but it raises a question: Why do McConnell and other Republican Senators even bother to lie about what they're doing, especially given how transparently unpersuasive their lies are? To be sure, we might ask the same question about Donald Trump, who often lies for no apparent benefit or reason, but Trump is a pathological liar. McConnell and the other GOP Senators--Professor Pozen discusses Lindsey Graham, Ted Cruz, and Tom Cotton--are not. They're hardly pillars of truth, to be sure, but one would expect them to derive some benefit from lying. And presumably they do.

Here I'll try to figure out what benefits the lying Republican Senators derive from their lies and therefore what motivate them to lie. I'll offer various hypotheses, none of which I intend to be exclusive of the others.

Low-information voters don't know the Republican Senators are lying.

Readers of this blog understand that the GOP Senators' efforts to distinguish the Scalia and Ginsburg vacancies are post-hoc rationalizations for a power play. But imagine that you're trying to explain why that is to a low-information voter--the sort of person whose vote might be up for grabs in a contested Senatorial election in a swing state. Low-information voters not only don't remember how Merrick Garland was treated; they don't know who Justice Scalia or even Justice Ginsburg was. Thus, to explain why the GOP Senators are lying, you need to explain: the constitutional rules of Presidential nomination and Senate confirmation; the historical practice that preceded the Senate's refusal to act on Judge Garland; how the treatment of Judge Garland departed from that practice; what Republican Senators said at the time; and how what they're saying now does not absolve them of the charge of hypocrisy.

How will you accomplish all of that with low-information voters who (by definition) pay very little attention to politics and news more broadly?

Fox News and reportage as stenography prevent explanation and contextualization.

Okay, you say, but if low-information voters aren't paying attention, why bother to lie at all? The short answer may be that low-information voters aren't zero-information voters. Maybe they will catch a glimpse of the news based on a Facebook post or otherwise. If they watch Fox News, they will see talking heads repeating the lying GOP Senators' talking points as though they're the truth. And even less ideological news outlets will report the Senators' statements. It took months of Trump's incessant lying for journalists to start using the L word to describe it as such, and even today, journalists are uncomfortable saying outright that a politician is lying, for fear of appearing unobjective. When even mainstream journalists act as de facto stenographers, lies are unlikely to be exposed as such.

The ends justify the means.

Since at least the Presidential election campaign of 1980, the Republican coalition has included social conservatives who want to prohibit abortion and business conservatives who want low taxes and deregulation. I say "included" rather than "consisted of" because it has also included racists to whom the GOP used to appeal by dog-whistles but, in the Trump era, has more openly courted. I'll mostly put the racial politics aside for now, however.

The preferences of social conservatives and business conservatives sometimes come into conflict. Some of the business conservatives are across-the-board libertarians who oppose abortion restrictions and favor LGBTQ+ rights; business conservatives also tend to favor less restrictive immigration policies as a means of ensuring access to cheap labor, whereas many social conservatives (especially those who are also racists) do not. Yet despite these conflicts, both groups feel their interests are served by the appointment of conservative judges and justices; and indeed, they appear to be correct; modern conservative judges and justices tend to take positions favored by religious conservatives on social issues and favored by business conservatives on issues of economic regulation.

Moreover, as an added bonus, conservative jurists serve the institutional interests of the Republican Party by deciding cases in ways that facilitate suppression of minority voters and maximizing the impact of money on politics. Appointing conservative jurists is, for the GOP, win-win-win, which likely explains why it has been the central goal of Senator McConnell as Majority Leader, just as blocking the appointment of liberal jurists was his central goal as Minority Leader.

If you think a goal is extremely important, you are more likely to employ dubious means to achieve that goal than you would be if you thought the goal less important. You are also likely to press every possible advantage. Thus, the accurate perception that the stakes are very high motivates GOP Senators to play hardball on judicial appointments. Even if lying about the supposed difference between the deaths of Justices Ginsburg and Scalia has only a very small marginal benefit, the potentially high payoff justifies doing so for Republican Senators.

They're high on their own supply.

In the immortal words of George Costanza, "it's not a lie . . . if you believe it." Rationalization is a powerful thing. If people are sufficiently motivated to believe something, they will tend to believe it. Thus, arguments that appear to the likes of Professor Pozen and me to be laughably bad and thus necessarily offered in bad faith might appear considerably more serious to those--like the Republican Senators offering them--whose druthers they serve. (I also do not doubt the possibility that part of the reason why Professor Pozen and I find the Republican Senators' arguments so terribly bad is that the stakes for us are also high, but in the opposite direction. However, I'll put my own potential cognitive bias aside for present purposes.)

Under the previous heading, I described the high stakes of judicial nominations for social conservatives, business conservatives, and the institutional Republican Party. Those stakes suffice to provide the motive for rationalization, but I'll take note of an additional one. Over time and especially with respect to judicial appointments, Republicans have come to see Democrats as not simply people with whom they disagree about the best path for the country, but as the enemy. The animosity has two dimensions.

One dimension is a kind of grievance politics. Republicans believe--despite the overwhelming evidence to the contrary--that beginning with the nomination of Judge Robert Bork, Democrats would stop at nothing to defeat Republican SCOTUS nominees.

What is that evidence to the contrary? Well, for one thing, Bork's rejection was largely on the merits, not a result of character assassination. Then-Judge Clarence Thomas was, if anything, given a pass because southern Democrats were fearful of electoral ramifications. And then-Judge Brett Kavanaugh's own performance ought to have been enough to raise doubts about his temperament wholly apart from the evaluation of his conduct many years earlier. (FWIW, as a Justice, Kavanaugh has displayed a fine judicial temperament.)

But beyond the specifics of the Bork, Thomas, and Kavanaugh hearings, a fair-minded evaluation of the Democratic opposition to these nominees would surely consider the fact that in the same period, Democrats gave fair hearings to various other nominees, including Anthony Kennedy, David Souter, John Roberts, Samuel Alito, and Neil Gorsuch. It's true that over time Democrats increasingly voted against Republican nominees, but none of these nominees was subjected to the sort of "treatment" that Senator Lyndsey Graham has invoked as his pretext for abandoning his prior principles. (Inexplicably, Graham includes Justice Alito among his list of supposed victims, even though there was nothing personal about his hearings.) If Democratic Senators were simply out to assassinate the character of GOP nominees, the pattern of going after most of them simply on the merits makes no sense. That's especially true of the difference between Justices Gorsuch and Kavanaugh. If the Senate Democrats were the villains that Graham and other Senators think they are, they should have gone after Gorsuch more aggressively, because he was nominated to the seat that the Republicans denied President Obama the power to fill.

All of the foregoing is to say that the Republicans lack good reason to demonize Democrats for supposedly randomly assassinating the character of judicial nominees. But the fact that they lack such good reason doesn't mean that the Republicans don't think it anyway.

There is a second dimension to how Republican Senators feel that underwrites their demonization of Democrats and thus their willingness to play hardball that includes believing their own lies about their motives: At least since the Warren Court, conservative politicians, jurists, and even scholars have seen liberal jurisprudence as illegitimate. Read the writings of self-styled originalists and textualists, and you will see them describe alternative approaches--especially living Constitutionalism and purposivism in statutory interpretation--not as other ways of interpreting vague language but as not interpretation. Conservatives think and say that liberals illegitimately legislate from the bench.

The charge is unfounded and hypocritical, but as with the charges of character assassination, that is not to say that Republicans don't believe the charge. Even if they didn't believe their own lies, the Republican Senators would benefit politically from the particular lies they're telling because in vilifying Democrats ("look how badly they treated Brett Kavanaugh"), they energize the base. But because they in fact believe that Democrats are villains, there is no cognitive dissonance as a result. The Republican Senators engage in Sartrean bad faith (deceiving themselves along with others) without paying a psychic price. Put more disturbingly, Mitch McConnell, Ted Cruz, Lindsey Graham, and the rest of the Trump enablers sleep well at night. (For an explication of Sartrean bad faith, see Professor Pozen's Constitutional Bad Faith in the 2016 Harvard Law Review.)

Bottom line: When you see your political opponents as enemies who engage in character assassination for the purpose of facilitating usurpation of the legislative role by lawless judges, you will be inclined to think that your own position is righteous, which will in turn blind you to the fact that what you're saying is hypocritical blather.


JS said...

I dispute that Lindsey Graham, Ted Cruz, and Tom Cotton ... Mitt Romney are not pathological liars. Any Republican politician who is not/was not a pathological liar has long been driven out of the party as a RINO; primaried on the right. And when did Lyndsey Graham ever have principles to abandon? And don't forget projection. Every Republican accusation against Democrats is an admission of their own crimes.

"If it wasn't for bad faith, they'd have no faith at all!".

Joe said...

I think it is a variety of things but a basic thing is that there is a great need for victimhood. You can't simply do things for raw power reasons in that sense. You need to justify it somehow. So, e.g., Lindsey Graham blames the Dems for mistreating Kavanaugh. McConnell and others make shit up (pardon my language, but I see even Prof. Dorf has been so upset to show signs of crankiness often left to others here).

There very well might be various explanations there. McConnell comes off as just a cynical political operative who will say what he deems necessary to win. Someone like Graham might have to actually rile himself up enough to sort of believe things (see him ranting during the Kavanaugh hearings). Some might have various degrees of b.s. like Romney talking about how courts since the 1970s led by now three conservative Chief Justices were "liberal" and now we will have a "center right" (as I recall) court, which he say is fair after years of liberal control.

But, I do think the us v. them, victimhood style factors in a lot here. This is something that is going to occur in political battles generally (see, e.g., the battle over slavery in the 1850s), but can be particularly strong at times.

No matter why, we should not accept it. There will continue be a desire to assume that things are normal, just political divisions as things go. Not the case now. And, since our system of federal courts are stocked with political appointees, that taints the courts itself. It is not "revenge" (to cite one misguided court watcher veteran) to feel a need to recalibrate this using major changes, not waiting maybe a decade or more as natural cycles occur to change membership.

Frank Willa said...

My view is that this is a cynical, corrupt, and crass move as part of a 'power for power's sake agenda'.

I quote, in part, from Eisenhower's remarks to the 4th Annual Republican Women's National Conference, March 6, 1956 (in part):

'...that if a political party does not have its foundation in the determination to advance a cause that is right and that is moral, then it is not a political party; it is merely a conspiracy to seize power.'

I hope this link is correct (6 short paragraphs):

Michael A Livingston said...

I have to say I don’t find the whole Garland thing very persuasive. The Republicans had a majority and would never have confirmed him one way or another. When you have a President and Senate of the same party it’s a wholly different situation. The real test, albeit a wholly hypothetical one, is what would Democrats do in a situation equivalent to today (D President, D Senate, opening of a highly contested seat). It’s hard to believe they would do differently from what the R’s are doing now. There may be other arguments against the current strategy—hurried process, lack of comity, polarization of the Supreme Court—but I don’t think the Garland parallel is persuasive.

rw said...

NYMag had, I think, the correct take on this question: "[Republicans are choosing to lie because] to frankly admit that the Supreme Court is a partisan, policy-making entity — and that its decisions are now of such profound ideological consequence that polarized parties can’t be expected to let norms constrain their attempts to gain judicial supremacy — would be to imperil the entire conservative judicial project." Court packing becomes less objectionable if we all admit what is going on now. (

But also - this is how the Republican party has operated for the last two decades... telling the truth about your policy goals is just bad politics when your policy goals are deeply unpopular and lies aren't penalized.