If you’re a Democrat, nothing says “Gotta take back the Senate” like the retirement of Supreme Court Justice Anthony Kennedy, author of the landmark decision legalizing same-sex marriage. The thought of President Donald Trump appointing Kennedy’s replacement probably makes you feel like writing a bunch of checks or firing off a bunch of tweets.
Kennedy is a giant, and the court will miss him. If you think his departure will help you win elections, then good for you. But I’ve spent a lot of time thinking about the appointment of Supreme Court justices. I’ve taught courses on the subject, written a book about it, delivered countless lectures, published many op-eds. And on the basis of a lifetime’s study, I’d like to pass along a few preliminary words of caution.
Related coverage of Kennedy’s retirement
Feldman: Justice Kennedy’s Legacy Is the Dignity He Bestowed
Bernstein: The Next Supreme Court Won’t Reflect Public Opinion
1. Suppose you take back the Senate. What’s your plan? Will you bottle up any Trump nominee, hoping to ride out his presidency? That strategy worked for the Republicans in 2016, but that was President Barack Obama’s final year in the White House. You could be talking about a long time.
I wrote then, and still believe now, that Republicans should have allowed a vote on Obama’s nomination of Judge Merrick Garland, one of the ablest jurists on the federal bench.
If the Democrats win, and then choose to emulate the Republicans, that’s their constitutional prerogative — but that doesn’t make it right.
I’ve long criticized the Senate for ignoring “the possible use of its confirmation power to force presidential concessions on other issues.” In other words, it’s perfectly appropriate for the opposition to use its power to approve or reject nominees as a bargaining chip. But bottling up the nominee for the sake of bottling up the nominee? That was wrong when Republicans did it, and would be wrong if Democrats do it.
2. Now let’s suppose your side doesn’t win the Senate. Or suppose Republicans push for a vote before the midterms, or in the lame-duck session. What’s the plan then? Once upon a time you could have filibustered, but those days are gone. So you’re next goal will be – but wait – here’s what I wrote in 2009, as we awaited news on Obama’s nominee to replace Justice David Souter:
The summer will unfold according to ritual. The nominee’s supporters will make absurdly glowing claims about his or her qualifications, the opponents will propound patently ridiculous charges of radicalism, bias or incompetence, and the nation will move on to the strangest spectacle of all — the Supreme Court confirmation hearing.
And it is a strange spectacle. That’s why I’ve long been in favor of abolishing confirmation hearings (seriously). But I realize that won’t be happening any time soon, so …
3. Try to avoid questions designed to elicit promises that the nominee will vote a particular way on a particular issue. Seriously. Among the most unfortunate aspects of our strange spectacle is the inquisition-style insistence on badgering potential justices on their views on the substantive questions with which, if approved, they would soon have to cope.
For one thing, nobody ever answers. Not Thurgood Marshall or William Brennan, not Antonin Scalia or Anthony Kennedy. (Well, Robert Bork did in 1987, and we all know what happened.) The nominees may dance around the questions and pretend to have said something, but we know they haven’t. And that makes sense. After all, what kind of judge are we talking about who will promise — in advance, under oath — to cast a particular vote on a particular issue? Imagine if the justices who had decided Brown v. Board of Education had been selected for their views on racial equality, back when the Dixiecrats ruled the Senate.
Speaking of the Dixiecrats, during the 1950s and 1960s, it was considered the liberal position that nominees should not be asked about their views on potential cases. Moderate Republicans agreed. Only the radical right, desperate to overturn Brown, felt otherwise.
Yes, it’s very likely that Trump or some among his staff will ask the nominee exactly the questions I’m saying the Senate should avoid. For that reason, the Judiciary Committee should most certainly inquire about conversations the nominee had with the White House. If it turns out that the president asked – and the nominee answered – then that fact, by itself, would justify a no vote.
4. Besides, did you ever really love Kennedy as much as you think you do? Yes, he authored the same-sex marriage opinion. But just hours before his retirement was announced, he joined the 5-4 majority in Janus v. AFSCME, which (to quote the Wall Street Journal) effectively dealt “a severe blow to perhaps the strongest remaining redoubt of the American labor movement.” And the day before, he joined the 5-4 majority in the “travel ban” case.
We could go on. My point is, if Trump were to nominate someone who would vote exactly like Kennedy, things would continue pretty much as they are.
But perhaps your concern is different. Perhaps your worry is that Kennedy was aging and his successor will be a lot younger. But when you put the problem that way, you transform the matter of succession into an unseemly death watch – waiting for this one to die, hoping that one hangs on – an exercise which, even in our alarmingly uncivil era, we would do better to avoid. Which is why I wonder –
5. Maybe now that it looks like there’s going to be a “conservative” majority for years or decades to come, you’ll join my campaign to reduce the centrality of the Supreme Court in American life. Maybe we could jumpstart democracy if we had a little less litigation and a little more doorbell-ringing.
You’re thinking, “Sure, but if we’d tried to overcome segregation that way, it would have taken a lot longer to beat it,” which is kind of funny but mostly sad, given that we’re nowhere close to beating it yet. More to the point, we shouldn’t generalize from any particular landmark liberal decision, or any particular set of landmark liberal decisions, to the conclusion that we’ve identified the proper norm for social change. It’s possible to win great victories without controlling the courts.
You’re going to answer, “Yes, but the Republicans are going to do that stuff anyway.” Maybe so. But in the strongly Democratic household where I grew up, that was a pretty thin justification.
6. My final thought is that I recognize, unhappily, that there’s no real hope that we’ll avoid the usual nasty partisan dustup – made nastier by both the wild social media mobs on both sides. So I can only urge all those even now girding for fierce battle: Please do as little harm as you can.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
To contact the editor responsible for this story:
Michael Newman at firstname.lastname@example.org