The authors persistently stack the deck by omitting or whitewashing just about everything that runs against their argument.
The authors persistently stack the deck by omitting or whitewashing just about everything that runs against their argument.
Q uinta Jurecic and Susan Hennessey of Lawfare argue, in The Atlantic, that “The Reckless Race to Confirm Amy Coney Barrett Justifies Court Packing.” The article aims at a more-in-sorrow-than-anger tone, which it announces without subtlety: “We have now come to believe, more in sorrow than in anger, that adding justices may be the only way to restore the institutional legitimacy of the Court.” It is, however, an incoherent soup of Democratic talking points to justify what Democratic partisans want to do.
Jurecic and Hennessey persistently stack the deck by omitting or whitewashing just about everything that runs against their argument. “For the past few years, court packing has largely been a fringe idea, promulgated by leftist scholars and activists” — well, if you ignore Pete Buttigieg (who used the idea to vault from nowhere into national prominence), Elizabeth Warren, Beto O’Rourke, Kirsten Gillibrand, and Kamala Harris, all of whom were warm to the idea a year ago. As you may have heard, Harris is on the national ticket. Some fringe.
Democrats under Franklin D. Roosevelt “rejected the potential short-term political gain of adding seats to the Court as coming at too high a cost to its long-term institutional credibility.” That’s putting it very mildly. The Democratic Chairman of the House Rules Committee said it was “the most terrible threat to constitutional government that has arisen in the entire history of the country” and would “change the meaning of our basic laws and our whole system of government” and give the president “something which no man in all this world ought to enjoy.” The Senate Judiciary Committee’s report said the proposal “should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” You’d think people who purport to care about our free institutions and the rule of law might find this concerning.
Turning to the nomination precedents, “In the history of the United States, only three Supreme Court justices have been nominated and confirmed in an election year by an incumbent who went on to lose.” That’s wrong. There have been four: Melville Fuller by Grover Cleveland in 1888, George Shiras by Benjamin Harrison in 1892, Mahlon Pitney by William Howard Taft in 1912, and Benjamin Cardozo by Herbert Hoover in 1932. They continue, “Never in modern American history has a defeated incumbent been allowed to fill a vacancy in the lame-duck period before leaving office.” This is contrasted with the Senate stopping John Quincy Adams from doing so, as well as Millard Fillmore and James Buchanan, neither of whom ran for reelection. But it has been done three times, two of them after John Quincy Adams (the other was by his father), and once after Fillmore and Buchanan. So “modern” is an elastic term here.
Naturally, no effort is made to address the actual historical precedents, under which every president with an election-year Supreme Court vacancy has made a nomination, and their confirmation has always turned on whether or not the president’s party controls the Senate. This is a pattern as old as the republic itself. Some critics have tried to grapple with these precedents, but Jurecic and Hennessey prefer to hope their readers are unaware of them.
Jurecic and Hennessey argue that there is an unprecedented legitimacy crisis because “a president who resoundingly lost the popular vote has filled two seats on the Supreme Court.” I am quite certain that 2.09 percent of the vote is not a margin Jurecic and Hennessey would describe as “resounding” if describing a Republican victory. But consider Benjamin Harrison. Harrison won the White House in 1888 while losing the national popular vote, the second of three consecutive elections in which Grover Cleveland won the popular vote. Harrison appointed two justices in his first three years, a third who was nominated in January 1892 and confirmed by Senate Republicans in July, and a fourth in the lame-duck session in February 1893, after Harrison lost the election. Was this a legitimacy crisis? When Republicans next faced the voters in 1896, they won a popular majority, the first of six in eight elections.
When Jurecic and Hennessey talk about “legitimacy,” they never answer, “Legitimate to whom?” They offer no evidence that a Supreme Court nomination by a duly elected president, confirmed by a duly elected majority of the Senate, lacks legitimacy under the very Constitution that grants those powers. The most serious legitimacy crisis in the Supreme Court’s history, in the aftermath of the Dred Scott decision, arose not from the appointment of justices but from an overreaching decision untethered to constitutional text and unduly close collaboration between the Supreme Court and the political branches. Rapidly escalating the number of justices appointed by the next president is a far greater and more obvious threat to that kind of legitimacy.
Jurecic and Hennessey warn that allowing Republicans to confirm a Supreme Court nominee close to the election, simply because they have been duly elected to hold both the presidency and a majority of the Senate, allows Republicans to play unprecedented one-sided hardball:
If Democrats gain the Senate and the White House in 2021, they will be faced with the choice of either engaging in reciprocal hardball — by wielding the raw political power to expand the Court, for example — or doing nothing and acquiescing to the breach. The latter strategy …“asymmetric hardball” — a situation in which one party plays hardball and the other sits on its hands.
How, you may ask, do Jurecic and Hennessey work into their story of how “one party plays hardball and the other sits on its hands” the conduct of Senate Democrats before 2017? We recall that Democrats were attempting — as the minority party in the Senate — a filibuster of a Republican nominee for chief justice as far back as 1986, and a filibuster of a Supreme Court nominee in 2005. Joe Biden participated in both filibusters, Barack Obama in the second. Even after Democrats voted down Robert Bork on purely ideological lines in 1987, Republicans voted en masse for Ruth Bader Ginsburg and Stephen Breyer. In 2003, Democrats (again in the minority) launched an unprecedented filibuster of appellate-court nominees. After threatening to eliminate the filibuster for such nominees — provoking an eloquent defense by Obama — Republicans backed down and cut a deal, surrendering some of their outstandingly qualified nominees. When Democrats were in the majority, they broke the deal, eliminating the filibuster in 2013 to ram through Obama’s nominees. How do Jurecic and Hennessey reconcile this history with a story of only Republicans playing hardball? By pretending none of it ever happened.
Thus, they argue that a Democratic threat should convince Republicans to make a deal:
If Democrats can convince Republicans that confirming Barrett would result in additional justices appointed by a President Biden, perhaps Republicans would step back from the brink and refrain from confirming Barrett.
Taking that deal sounds more reasonable if you conceal from your readers what happened last time.
So, what is their plan?
Democrats should add seats to the Court; the most common suggestion has been two, to balance out Republican appointments to Antonin Scalia’s and Ginsburg’s seats.
In other words, this is not just about Barrett; for all of Jurecic’s and Hennessey’s talk about the Barrett nomination, they are actually also trying to get back at Republicans for not confirming an election-year nominee in 2016.
Republican-appointed justices have been able to perpetuate conservative control over the Court despite periods of Democratic control of the White House and Senate. . . . This would change the political environment . . . to a situation in which both parties have an incentive to cooperate. . . . It also corrects the imbalance of a Court stacked with Republican appointees, returning both parties to something closer to an even playing field.
“Conservative control of the Court” would be news to anyone who has followed the Supreme Court’s decisions on social issues, which have persistently ruled in favor of liberals, often without even the vaguest grounding in the text of the Constitution — a thing that might matter if the rule of law is your concern. This has happened despite extensive periods of Republican control of the White House and Senate. When Jurecic and Hennessey talk about “imbalance” and “an even playing field,” they mean that there are simply certain outcomes the Supreme Court should never be permitted to reach, regardless of what the law actually says.
Expanding the Supreme Court in order to dictate the outcomes it reaches is fundamentally different in kind from simply using the powers of the presidency and the Senate to control who fills the existing seats on the Court. Jurecic and Hennessey are, by their own admission, fully aware that this would be a devastating blow to the independence of the judiciary and corrosive of the rule of law. Dressing up a desire to reach preferred outcomes — or worse, simply to thwart Donald Trump — in the clothing of norms and legitimacy is shameful. Doing so without even frankly addressing the arguments is intellectually shabby to boot.