A Supreme Court Grand Bargain Wouldn’t Have Worked

I f there were an act of statesmanship that could get Democrats to forswear constitutional brinksmanship, it would be worth doing. If there were an act of statesmanship that could get Democrats to accept the restraints of a constitutional court, it would be worth Republicans’ surrendering the chance to pick the next 25 justices to the Supreme Court.

Alas, there is not.

We really do face a potential crisis of legitimacy, and it relates to the Court. I’ve written about my worries on this for some time. On that much, I agree with David French, Jonah Goldberg, and Adam J. White. But I don’t think there’s a grand bargain that can stop the dynamic that frightens us. Writing in The Bulwark, White made the strongest case for a deal whereby Senate Republicans hold off on appointing a Supreme Court justice until the election, in exchange for promises from Democrats to forswear court-packing, addition of states, and the abolition of the legislative filibuster. The ultimate aim is to get senators in the habit of practicing self-restraint. Make the Senate Great Again!

With today’s news that Mitt Romney will support a floor vote on the president’s nominee, it appears as if Senate Republicans have enough votes to proceed. And thus, the grand bargain is no longer. Good. It wouldn’t have worked. No gestures ever do. Republicans have repeatedly tried to restore the prelapsarian function of the Senate confirmation process, only to be met with further Democratic escalation. Democrats took the step of knocking down Robert Bork’s nomination in 1987, and the process modeled the brinkmanship to come. The media even leaked a handwritten list of Bork’s rentals of VHS tapes to help scuttle the nomination. Anthony Kennedy was appointed and confirmed unanimously afterward. Democrats saw this as a win.

Then came the “late hit” on Justice Clarence Thomas: the Anita Hill hearings. Democrats failed to produce a shred of evidence substantiating the accusations against Thomas. Hill was misled by Democratic handlers into thinking she wouldn’t have to go public with her allegations, only to be put into a fait accompli where she had to participate in televised hearings. The result was the American people disbelieving her accusations and favoring Thomas’s confirmation. Still, in 2018, prominent progressives made a case for impeaching Thomas over the Hill allegations.

Did Republicans respond in kind? No. Judges nominated by Bill Clinton received overwhelming Republican support. Ginsburg racked up a 96–3 confirmation vote. Breyer got 87–9. In the Bush years, Democrats took to filibustering Bush’s lower-court nominees. This included the attack on Miguel Estrada, who was nominated to the D.C. Circuit Court of Appeals. Leaked memos showed liberals opposed him due to his ethnicity. It was in part because “he is Latino.” Estrada’s nomination was held up for 28 months, under the dishonest excuse that undisclosable documents about him were unjustly withheld from public scrutiny. During those 28 months of media barrage, his wife miscarried a child, and then died herself of an overdose of sleeping pills and alcohol. Republicans contemplated destroying the Senate’s filibuster power on judicial nominees, making the same arguments about the duty of elected senators to govern that Democrats would later use. But Republicans stepped back from the brink. Soon, however, Barack Obama would filibuster Justice Samuel Alito’s nomination, and explain that he believed Alito was “contrary to core American values.” This was something he was later reported to have regretted. Democrats ultimately ratcheted up the pressure under Obama, destroying the use of the judicial filibuster.

It’s important to remember that talk of packing the Court, ending the legislative filibuster, and adding new states to dilute the electoral strength of Republicans in the Senate all began in earnest before the vacancy left by Ruth Bader Ginsburg. And that’s before we get into the enormities of Brett Kavanaugh’s confirmation process, which featured Christine Blasey Ford in another sexual-assault allegation, one in which her only corroborating witness to the event denied that it happened. This was followed by a series of fraudulent gang-rape accusations that crossed the line into fantasy.

There was no reason to expect that making any political gesture in good faith could stop the Democrats’ ascent up the escalation ladder.

A preemptive concession would have been seen as a sign of weakness only. It would have been seen as an admission that Republicans lacked the votes to confirm a new justice. Therefore, in the (entirely notional) moral ledger of political combat over the Supreme Court, it would not have counted with Democrats as an attempt to make amends for extravagant opposition to the Merrick Garland nomination in 2016. Democrats would not have any compunction about nominating a progressive in 2021. And, in their eyes, Gorsuch would still be sitting in a “stolen seat.” And sure, maybe Thomas should be impeached too. A Democratic Senate under a Democratic president would show no hesitation about filling vacancies left by conservatives such as Clarence Thomas and Samuel Alito, who are both over 70 years of age.

The habitual Democratic brinkmanship and norm-breaking about the composition of the Court is not some random quirk. The tactics follow from the very nature of the Democrats’ peculiar political commitment to it. You can see it in their behavior. Unlike Republicans, Democratic Senate and presidential candidates do not traditionally emphasize the courts and their composition in their election campaigns. Democratic senators did not make Merrick Garland’s stalled nomination a central component of their 2016 campaigns.

The media’s strange role in the Democratic process of “protecting” their turf on the Court is also constitutive and consistent. It builds from furnishing Bork’s video rentals, to putting forward uncorroborated and “reconstructed” memories of lewd partying, to convicting an all-boys Catholic prep school, to floating bizarre theories that Merrick Garland can simply assume his seat on the Court in the absence of a Senate vote.

What all this shows is the commitment of the progressive clerisy to the Court as an anti-democratic super-legislature. Republicans continue to make popular appeals for their approach to the judiciary, and win victories on them. Republicans do not invent fake criminal allegations against Democratic nominees, but Democrats do engage in this. Democrats don’t defend their substantive commitments on the hustings because they aren’t all that popular. What’s popular? Lots of legislation that would minimally restrict and regulate abortion — legislation that Democrats can only attack with lies, smears, and extravagant threats to the constitutional order.

It would be better for the Republic if Democrats stopped playing this game. But there is no good-faith gesture that wouldn’t be taken in bad faith. There are only two foreseeable ways in which this drama will end. One is that the Democrats will either carry through their plans for blowing up the Supreme Court, adding states and their senators in a fit of pique, and courting the public backlash for doing so. The other is that Republicans will keep getting elected and filling the judiciary with qualified justices, and the voices on the left who have begun writing against judicial progressivism will win the intra-left argument, and we can all begin the work of restoring the role of Congress in American governance.

Conceding Ruth Bader Ginsburg’s seat in a grand bargain would have resulted in nothing more than extending the morbid life of the anti-democratic progressive clerisy. It should be rejected with prejudice. Thankfully, it looks like Senate Republicans understand as much.