Sunday, July 15, 2018

There are no Political Short Cuts to a Depoliticized Supreme Court

Borrowed from Mike Raburn's blog
In Tipping the Scales (NYR, 7/19/18), Noah Feldman (Harvard law professor) attempts to divine the import of the GOP’s hold on the Supreme Court. “A conservative jurisprudence, aggressively applied, would reshape American law and politics,” he predicts. “It would reinterpret fundamental issues of individual and privacy rights, health care, employment, national security, and the environment.” Read Feldman’s article, written before the Kennedy announcement; the upshot to my ears is less depressing than one might think.

For the next 25 years, liberals will need to focus on electoral politics. The good news is there continues to be a majority for the liberal order. That majority needs to work to consolidate its power in legislative arenas. Liberals need to get back in the trenches and elect liberals to school boards, city councils, county boards, Congress, and--ahem--the presidency. Maybe even (finally) shatter that glass ceiling. We need to stand up and defend liberalism.

Same sex marriage, voting rights, abortion, environmental regulation, progressive taxation, and all the rest of the domestic liberal agenda can (and will have to be) secured through legislative means. If we liberals get legislative majorities--and we will--we can safeguard, and advance, the liberal agenda. If we elect Democratic presidents the damage wrought by Trump to the liberal international order can be repaired. A GOP court will make things a little harder, but it does not fundamentally change the fight.

Our constitution doesn’t always help. It is very undemocratic. Brad DeLong has a daily reminder on his blog: “180.8 million people are represented by the 49 senators who caucus with the Democrats, while 144.7 million people are represented by the 51senators who caucus with the Republicans; 65.9 million people voted for Hillary Rodham Clinton and Tim Kaine to be their president and vice president 63.0 million people voted for Donald Trump and Mike Pence to be their president and vice president.”

Sanford Levinson, law professor at the University of Texas, has long advocated that our constitutional order is seriously broken and we need to revise it. See his book Our Undemocratic Constitution (2006). The Electoral College is seriously undemocratic at this point. Gerrymandering has made matters worse. At this moment in time, the GOP enjoys a playing field tilted in its favor and the Supreme Court is not about to intervene anytime soon.

We have come to depend on a liberal Supreme Court to help secure the liberal order; to help us along the road to a more liberal politics. Same sex marriage is just the latest example. It makes some look for political shortcuts to ensure a liberal court. If Democrats regain the Senate, could a Democratic president increase the number of judges to rebalance the court? But court packing was no solution in 1937 and it is no solution now. If something happens to Ginsberg and/or Breyer and we wind up with a 7-2 GOP court by 2020, an appointment of six new liberal judges (to bring the court to 15, a number discussed by Roosevelt’s court packing plan) would be just enough to result in an 8-7 liberal court. With the current 5-4 split, eleven judges would do the trick. But this seems like an unlikely fix. And it would be bad precedent to increase the size of the court just to get a majority every time party control changes. I don't see it happening. And the court should not be tied to party in this manner. The fact that there currently is a perception that a majority of the Supreme Court is staffed by GOP zealots and loyalists is a bad thing. We should work to lessen the court's identity with party, not increase it.

A better idea would be to establish term limits for Supreme Court Judges and provide every president with an equal opportunity to appoint judges. But it would also require a constitutional amendment: Art. III, Sec. I says judges shall hold their office "during good behavior." Realistically, for now, we are stuck with the status quo.

Others, still smarting from the GOP’s theft of the Merrick Garland seat, suggest passing legislation to fix how quickly the Senate must act in giving its consent to judicial appointments. In hindsight, Obama should have taken the issue of waiver (McConnell announcing Garland will not be considered = waiver of the consent role) to the courts. I argued for this at the time. But it is hard to know how that would have turned out. Nevertheless all attempts to implement rules to depoliticize the appointments process should be welcomed. 

Judges take a dim view of the confirmation process and for good reason. We haven't always had confirmation hearings, and perhaps we would do well to do away with them. After all, such hearings are not a truth-finding venture. They are a venue for political grandstanding. To shroud political appointments with political grandstanding of all stripes increases divisions in society and the independence of the court. Judicial appointment circuses do not make for a better court or for better politics.

Broken as our constitutional order is, there are no political shortcuts. There is no substitute for the hard work of electoral politics. Politicizing the court is a bad idea. The sooner we realize this and get down to work, the better.

Follow me on Twitter @RolandNikles