Bench Memos

Law & the Courts

Geoffrey Stone’s Assault on the Integrity of the Supreme Court

In a Huffington Post essay titled “The Republican Assault on the Integrity of the Supreme Court,” law professor Geoffrey Stone offers a characteristically unhinged screed. Among his barrage of intemperate charges, Stone contends that the Senate Republican inaction on President Obama’s nomination of Merrick Garland was “nothing less than a constitutional coup d’etat.” He fumes that “President Trump’s first appointment to the Supreme Court will in fact be an illegitimate interloper who has absolutely no business being the decisive vote in critical Supreme Court decisions in the years and decades to come.”

Let’s consider some of the major flaws in Stone’s analysis:

1. Let’s start with Stone’s claim of a “constitutional coup d’etat.” The simple fact is that Senate Republicans lawfully exercised the constitutional powers of the Senate to block action on the Garland nomination. Stone does not contend otherwise. To his credit, he also did not sign his name to the “silly” and “entirely fatuous” letter from law professors asserting that the Senate has a constitutional duty to hold a hearing and an up-or-down vote on a Supreme Court nominee.

Stone is entitled to decry that Senate Republicans did not confirm Garland. He can try to argue (as he does—see my point 2) that they thereby “violated the norms of the Supreme Court appointments process.” But to label the lawful exercise of constitutional powers “nothing less than a constitutional coup d’etat” is grossly irresponsible rhetoric.

2. Let’s now consider Stone’s lesser argument that Senate Republicans “violated the norms of the Supreme Court appointments process and deliberately abused their authority for rank partisan advantage.”

I’m not entirely clear what “norms” Stone alleges that Senate Republicans have violated, as I don’t see anything in his essay that amounts to a straightforward statement of those norms. The closest Stone gets is his complaint that Senate Republicans acted “to prevent a duly elected president from appointing to the Supreme Court an eminently qualified and properly confirmable justice in the rank partisan hope that the next president—hopefully a fellow Republican—would then appoint a justice more to their ideological liking.” But Stone himself, back in 2006, urged Senate Democrats to defeat the nomination of Samuel Alito, who Stone acknowledged was a “smart, experienced, and knowledgeable jurist.” And he did so in the hope that a justice “more to [his] ideological liking” would be appointed in the wake of Alito’s defeat.

So it’s apparently sometimes okay for senators to try “to prevent a duly elected president from appointing to the Supreme Court an eminently qualified and properly confirmable justice in the rank partisan hope” that the sitting president will “appoint a justice more to their ideological liking,” but it’s a violation of supposed “norms” if they do so in the hope that the next president will make such an appointment? So an opposite-party Senate somehow has less power the later it is in a presidential term? What sense does that make? In any event, tell that to Joe Biden, who in 1992 prescribed exactly the course of action that Senate Republicans followed 24 years later. And tell that to Chuck Schumer who threatened similar obstruction well over a year in advance of the 2008 elections.

Yes, it’s of course true that no vacancies arose in those instances so that Democrats did not have occasion to follow through on their threats. But the statements of leading Senate Democrats Biden and Schumer belie the existence of the norm that Stone apparently imagines. And does anyone familiar with Stone’s record believe that he wouldn’t have fervently supported Democratic obstruction in those instances?

3. More broadly, what higher duty in the confirmation process could a senator have than to work to ensure the appointment of a justice who, in the judgment of the senator, will be faithful to the Constitution? Stone’s rhetoric about “rank partisan hope” and “ideological liking” seems designed to obscure or deny the reality that such a duty exists.

In this regard, I’ll note that Stone says it was “blatantly dishonest” for Senate Republicans to maintain that their course of action “was ‘justified’ by the fact that the vacancy arose during President Obama’s final year in office.” Stone points out that many presidents have made Supreme Court appointments “in the final years of their terms.” But it’s silly to pretend that Senate Republicans were positing an abstract principle that no Supreme Court nominee in an election year should ever be confirmed. When Republican leader Mitch McConnell declared on the evening of Justice Scalia’s death that the “American people should have a voice in the selection of their next Supreme Court justice,” he was expressly making a political point that took account of (among other things) the party divide between the presidency and the Senate and the potential for the next appointment to transform the Court ideologically.

4. Far from being an “illegitimate interloper,” the next Supreme Court nominee confirmed by the Senate and appointed by the president will have exactly the same legitimacy in deciding cases as the other eight justices have. 

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