Tuesday, October 13, 2020

Republicans Like Court-Packing, and Maybe You Should, Too

by Neil H. Buchanan
Is it too late to change the narrative on so-called court packing?  As I noted at the beginning of last Friday's column here on Dorf on Law, we have already lost the supposedly neutral headline writers at The New York Times, who label any discussion of changing the structure of the Supreme Court with that negative-sounding term.  The Times has, moreover, continued in the days since then to treat this Republican-friendly framing as the unexceptional default.

And it is not only the most influential newspaper in the country that has fallen into this black hole.  MSNBC's anti-Trump opinion shows are buying in, with what was otherwise an excellent segment with Senate Minority Leader Chuck Schumer -- who never used the term court packing -- being accompanied by a chyron reading: "SEN. SCHUMER (D-NY) ON COURT PACKING."
Heck, in a press conference in which Joe Biden quite effectively said that expanding the Supreme Court is not a pressing issue right now (and added that he is "not a fan" of the idea, which I found disappointing), even he used the dreaded words court and packing as if the phrase means something.

So the reputedly liberal press has painted Democrats into a corner on this, and the Democrats themselves have shown no inclination to fight it.  What now?  Own it!  Allow me to explain.

My original title for this column was an academic-sounding declarative statement: "Exploiting Play in the Constitutional Joints Is Not a One-Sided Game."  The fight over the size of the Supreme Court, after all, is hardly the only situation in which the political parties have shown that they have quite different attitudes about how aggressively they can ignore longstanding norms in the exercise of raw power.

In a column in December 2016, I noted that there is nothing in the Constitution that says what "advise and consent" actually means, which became especially obvious soon after that, when Senate Republicans changed the internal rule for Supreme Court confirmations by internal vote.  My argument was that President Obama could have simply said that Republicans had been given the opportunity to advise (by holding hearings) and to refuse to consent (by voting "no") on the nomination of Judge Merrick Garland; and when Republicans chose to do none of those things, they had consented by their inaction and silence to allow Obama's nominee to become a Supreme Court justice.

Would that have been politically cataclysmic?  Absolutely.  But why was that more politically explosive than what Republicans did, which was to make up a fake rule out of whole cloth in order to get their way?  Why is it assumed that Democrats will not play hardball but the Republicans will?

And now that the Barrett nomination has caused Republicans to say with complete clarity that they are doing it because they can, and they simply do not care what they said to justify their earlier power grabs, we still have Democrats who are afraid of being labeled court-packers.  Very odd, to say the least.

My suggestion is that Democrats should, as I noted above, embrace the label court-packing; and they should do so in a way that makes it clear that packing the courts is simply another label for everything that Republicans do as a matter of course.

Will Republicans complain?  Of course, but remember that they claimed that Obama was trying to pack the courts simply by nominating non-Republicans to existing seats.  For Republicans, "packing the courts" is not merely their description for changing the composition of the courts.  It is their go-to complaint for having anyone on the bench whom they dislike.

Even on the structural side, the definition of this elusive concept of court packing is pretty easily exposed as a sham.  In 2016, the Republicans exploited their political power to shrink the Supreme Court to 8 seats -- and they openly said that they would keep it at eight if Hillary Clinton became president (and would happily allow it to shrink more, should any further seats open up).  Then, in 2017, they exploited their political power to expand the court back to 9 seats.  (I do not have the link available, but I readily acknowledge that I am not the person who realized that this is the best way to describe what Republicans did.)  They also shrank the lower courts by hundreds of seats from 2015 to 2017, only to expand the courts again by adding hundreds of new judges to the federal bench.

No, the Republicans did not pass a law or procedural rule (or even an internal resolution) explicitly stating: "We hereby vote to shrink the courts for now, and expand them later."  That they did not say it, however, does not stop it from being what they did.

It seems to me, then, that Democrats can and should follow a two-track strategy of saying, "If anything, we're unpacking the Courts," while also saying, "And who is truly against court packing, anyway?"
This is especially interesting because FDR's plan to increase the size of the Supreme Court seems to be the only widely agreed upon example of pure court-packing.  Even as the Democrats can say, "Hey, we're doing this completely legally and in compliance with the Constitution," they can also say, "Well, if you don't like it, we could alternatively impose term limits on Supreme Court justices, which is not only not expanding the Court but is explicitly designed to negate the kind of court-packing that Republicans have been doing forever."

In any of these situations, the Democrats need to accept that they are now living in a world in which loose joints in the Constitution's structure represent opportunities that they cannot expect anyone to leave unexploited.  Even if they are worried about Republicans someday expanding the Court from 13 to 19 or 119 justices, what is the equivalent to adding D.C. and Puerto Rico as states by act of Congress?  (Explicit provisions in the Constitution do not allow anyone simply to split up existing states, as Californians have discovered to their chagrin.)

Republicans will not like it, of course, but they are completely situational when it comes to reading unwritten rules into constitutional provisions.  They currently love the idea that the pardon power is limitless (even though it clearly is not), but they insist that scrupulously following the Constitution's provisions to impeach and try a president is somehow illegitimately "undoing an election" (as if an impeachment could be anything else) -- even though the Democrats grudgingly but unambiguously accepted the results of the sham trial that Republicans announced in advance was rigged for Trump.

Republicans hardly limit their opportunism and hypocrisy to the courts.  They claimed to hate executive orders ("Obama thinks he is a king!") but now love them.  They claimed (and still dishonestly purport) to hate deficit spending but then embrace it.  On that latter issue, of course, they tried to avoid the stain of hypocrisy by rediscovering the completely discredited "tax cuts pay for themselves" mantra, which means that they were either hypocrites or idiots (or both).

What makes the current version of Republican hypocrisy interesting is that they are deploying it prospectively.  That is, in other situations, they have taken one position and then abandoned it later.  They were, as I noted above, against deficits at one point but had no problem with increased federal borrowing at a later point.  But at least some time passed before they opportunistically switched positions, allowing them to say that “things changed” somehow.  It was dishonest, but it had the veneer of a plausible sequence of thoughts.  Now, however, even as they reap the rewards of their court-packing efforts, they are screaming that Democrats might someday pack the courts.  That is a new level of chutzpah.

As much as I despise the political strategist Karl Rove (the man who all but invented George W. Bush as a political entity, which would be a good thing to remember for liberals who are suddenly viewing W in a positive light), he had the insight that the best strategy against a strong opponent is not to try to exploit weaknesses but to attack strengths.  Thus, even though there were plenty of weaknesses in John Kerry's candidacy in 2004, Rove had the Bush campaign attack Kerry's one clear political strength: his military record.

Pulling off that particular version of Rove's strategy required quite a bit of blatant dishonesty, but the larger point is that running away from fights -- even fights that seem to have very steep odds against you -- is not necessarily the best way to win.

Indeed, I have embraced a version of this strategy in my academic writing.  For years, I told audiences (in writing and during live appearances) that the concept of "efficiency" as used by economists and law-and-economics scholars means nothing.  I argued, therefore, that people should stop using that word, because it carries a positive connotation that confers legitimacy on right-wing ideas.

At one point, however, I had an epiphany.  As related in a footnote in the forthcoming Cornell Law Review article that Professor Dorf and I recently completed, I realized a few years ago that if there is no coherent definition of economic efficiency -- and there definitely is not -- then anything at all can be called efficient.  Rather than responding to others' claims to have found an efficient policy by saying, "No, efficiency doesn't even mean anything," perhaps the better play is simply to say, "No, my policy is efficient."  And because one can set up one's economic model in a way that makes anything efficient (and everything else inefficient), saying "I'm the efficient one" is both right and wrong.

Here, because (as with the word efficiency) it might already be much too late to get the media (and even Democrats) to stop talking about court-packing, the better strategy could well be to say: "I'm court-packing, you're court-packing, we're ALL court-packing" (with apologies to "The Rocky Horror Picture Show").   Question: "Senator Democrat, aren't you talking about court-packing?"  Answer: "Well, we're actually talking about unpacking, that is, undoing years of Republican court-packing.  But sure, whatever, man.  If you insist on calling this court-packing, why should Republicans be the only ones who get to have all the fun?"

"Obamacare" was once a politically negative term.  Even though I still prefer calling it the ACA, overuse has arguably turned Obamacare into a neutral (if not positive) term in current discourse.  More broadly, perhaps we can get to the point where being accused of court packing would be the equivalent of being accused of doing anything else for political advantage.  No one is scared when a legislative leader is "accused" of being political by scheduling votes strategically.  The Constitution and the laws allow that to happen all the time.
The Republicans have exposed how easy it is to politicize the courts.  That might or might not be a bad thing, but Democrats need to embrace their side of this fight.  Everything is now court-packing, and no one should be ashamed of trying to undo what Republicans have done, no matter what we call it.