Monday, April 1, 2013

Ginsburg and the Senate

Over the weekend, I had a Salon column arguing that Ruth Bader Ginsburg should retire at the end of the current Supreme Court term (with retirement taking effect upon confirmation of her replacement). Today, I did a follow-up looking at where the votes would fall in the Senate.

A few more thoughts...first: I don't understand the objections that this line of thought is insulting to Ginsburg, or what I think is a related argument that SCOTUS should be above politics. I think that's a real misunderstanding of the Court. It's true that Supreme Court justices don't, and shouldn't, simply vote the way that Members of Congress vote on issues. But yes, absolutely, the Court is and is meant to be "political" and a part of the US democracy. And during an era in which the polity is highly partisan and polarized, it's no surprise that the Court is, too. Not only no surprise, but it's basically what we should want. The idea that the Court should be the same regardless of what voters want is anti-democratic -- and, given the Constitution, unrealistic.

When it comes to the Senate...there's some possibility that there could be some real difficult calls for individual Senators. One thing I didn't talk about is the Democrats; it's likely, but not certain, that they would stay united -- but that means that any individual Democrat who wanted to sink a nominee, presumably before she was named, could do so. It's probably also the case that several Senate Democrats would probably prefer that they can duck any SCOTUS fight, even if the party as a whole might welcome it.

On the Republican side, I can imagine a couple of things. To the extent that Barack Obama is more popular than Congressional Republicans, they might collectively want to make the whole thing go away quickly -- especially since the potential for Akin moment would be thought to be fairly high. But there aren't too many Republicans who would want to be the ones who case the winning vote for a Ginsburg replacement; even in Maine, that's something that could potentially draw a tough primary opponent.

Granted, all of this is mostly speculative at this point. But if it does happen, it's going to be an enormous story, and deservedly so. Might as well start thinking about it now.

19 comments:

  1. Jonathan,

    There is nothing illegitimate about strategic retirement however the practice of strategic retirement demonstrates why lifetime appointments are probably the most indefensible part of the Constitution. The idea that a person can hold power for three decades such as Scalia and than game his resignation to ensure that his seat is filled by someone similar is perverse. We should have 10-15 year fixed term appointments.

    But yes, absolutely, the Court is and is meant to be "political" and a part of the US democracy.

    Most developed world countries get along fine without strong judicial review.

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    1. Make it 18-year terms and stagger them so each president appoints a justice in the first and third years of a term.

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  2. I wonder what cohort will get the "diversity" nod? There's already a wise Latina ... so maybe an Asian? I'd almost go with Obama replacing Ginsburg with another Jewish woman to maintain the trifecta. With Jews so dominant in law and politics, there may be a lot of pressure on Obama to please his intellectual base.

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    1. The GOP should hold some hearings on this "trifecta" of which you speak. That was they can help ensure that a suitable number of white Christian men are being appointed to high-level government positions.

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    2. By "trifecta" I mean that there are three Jews on the SCOTUS when there are only about 8 million Jewish Americans. White Christians are now poorly represented in positions of power and influence whereas Jews are unbelievably overrepresented. If you don't believe me it's because you're stuck in the past.

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    3. I shouldn't be so sarcastic. I guess what I mean to say is that I'm comfortable with three or more Supreme Court Justices being Jewish, or Latino, or White, or Black, etc. It seems to me that between the President, the Senate, the news media and the public, the US has so far been able to put together a Supreme Court that most people feel comfortable with.

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    4. That's an interesting idea. I would think that most people have no idea who's on it or what they're ruling on.

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    5. White men are 5/9ths of the Supreme Court and are about 4/9ths of the total population of the US. Statistically indistinguishable. Four of the five white men on SCOTUS are Christian, with two of the other four members also being Christian, so 67% of the bench. About 80-85% of the population of the US is Christian, so the white male part of the court matches, and the overall percentage is close enough that, again, it's probably statistically indistinguishable given small sample size. The 112th Congress (I found those stats easier) was 86% Christian, 83% male, and about 83% white.

      Underrepresented? Where?

      You can make a decent argument that Jewish Americans are overrepresented at the Supreme Court, but it's hard - particularly when you expand out to "positions of power and influence - to say that white christian men are particularly underrepresented. The two might seem parallel, but they aren't precise logical or mathematical opposites.

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    6. Bitter Fig,

      You said it better; white Christians are well represented. Jews are massively over-represented ... just as in most areas of power and influence.

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  3. Agree with everything in your Post article except I think that Republican resistance will be much stronger to a moderate liberal replacing a conservative than replacing Ginsburg (or Breyer). They'll see it as a game changer, and they're right on some things like Citizens United.

    We'll see how good my predictive powers are, but I'm betting Ginsburg won't quit even though she should for the good of the country. Judges see themselves as too essential to be replaced.

    Like the idea of appointing older justices. I think term limits for Supreme and appellate courts are a good idea than reduce the political stakes, but in the absence of a constitutional amendment (Rick Perry's sole good idea), this is next best.

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    1. My term idea: If two years have gone by without a retirement, the longest-tenured member of the Supreme Court steps down. They may be renominated (with tenure reset) at the discretion of the President and the consent of the Senate.

      ///

      As to the Republican resistance, I'd be surprised if they didn't filibuster anyone Obama nominates, so I don't see much of a difference if he's replacing Ginsberg or Scalia.

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  4. Easy: Obama should appoint a red state Dem Senator to the Court. The nomination will fly right through the Senate.

    That's the end result of McConnell's Eight-Year Filibuster... nevermind the most qualified people, nevermind the fact that the government needs people in these positions. The one and only purpose of a nomination vote (or any vote) is to screw with the President.

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  5. Strategic retirement is legitimate but it is also rare. Most justices serve as long as they want to serve and are healthy enough to serve (and some even ignore the latter...)

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  6. Mr. Bernstein, this is one of the few occasions in which I must respectfully disagree with you. Although I think that a Republican Senate would indeed offer resistance to ANY Obama nominee to the Court, I do NOT think that they would simply refuse to nominate anyone, which is what I think you are saying.

    Supreme Court vacancies are big news, and if the GOP decided to usurp the president's power to nominate replacements, everyone would know within two minutes. The news would appear on the front page and would stay there. Interest groups would have an enormous opportunity to weigh in and agitate, and the public would follow the imbroglio. In such a conflict, the Republicans are almost certain to come off the losers. I can't imagine that this kind of palace revolt would improve the GOP's standing among voters, nor would it benefit them in the next election.

    Therefore, although I think the GOP could certainly take the position that it won't move on ANY Obama nominee to the Supreme Court, I doubt it could hold that position for very long.

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    1. Eh. They probably wouldn't say that they're blockading any possible choice; they would probably, instead, just keep finding problems with each one.

      As to whether it would hurt them: remember, the question is whether voting for cloture is a good or bad move for each individual Senator. It's very possible that they will perceive voting for cloture as the wrong way to go for them personally, regardless of the effects on the party as a whole.

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    2. I see what you're saying, but I find it hard to believe that even the modern GOP would find enough support within its ranks to sustain an indefinite blockade of Obama's Supreme Court nominee. Heck, the party wasn't even willing to hold the line on the Hagel filibuster. They caved after about a week, and as I recall, they announced at the beginning their intention to cave.

      Although I think you're right - the party will want a scalp or two - in the end Senate Republicans know they're going to have to confirm someone. I have this fantasy that Harry Reid would in that scenario lay down the law, but he's proven that, although the current use of the filibuster annoys him, he's not willing to change it.

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    3. I'm not making a prediction, but: the incentive to blockade SCOTUS is far, far, far greater than the incentive to defeat Hagel.

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  7. The Supreme Court staying the same despite what the people want is "anti-democratic," but isn't that the point? Why no Madisonian love for a deliberately un-democratic, non-(directly) majoritarian feature of the Constitution?

    More broadly, the Supreme Court's selection mechanism partly rests on the idea that the law contains a strong objective element--that proper legal analysis will reach the correct conclusion whether conservatives or liberals conduct it. That is to a large degree a fiction, but an important fiction: structurally embracing, in our political norms regarding the third branch, the hard legal realist idea that law is party politics in robes would quickly erode modesty and deferrence to precedent in law and become a self-fulfilling diagnosis.

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