A Switch in Time Could Save 10

Dear #NeverTrumpers,

First, I’m sorry the “open letter” format is a cliché. But I sincerely mean to engage conservative Never Trumpers – many of whom I regard as modern day heroes – in dialogue here. I’m sincerely hoping for some reconciliation, in a season for me and many of us of reconciliation and moving forward. The vote on Judge Kavanaugh represents an opportunity for compromise – or another step of escalation. At the end, I propose a long-term compromise to institutionalize bipartisanship and avoid escalation.

During President Franklin Roosevelt’s battle with the Supreme Court, he proposed adding seats to the Court. When two moderate Justices switched – just in time – from striking down the New Deal to upholding it in 1937, it was said, “A switch in time saved nine.”

Now, in 2018, a switch in time could save ten, as opposed to starting a cycle of court-packing that would, like Spinal Tap, “go to eleven,” and then go beyond eleven each time a party had unified control of White House and Senate.

The bottom line is that it’s not too late to pause before we all break the Court in a vicious cycle. Confirming Kavanaugh will lead to three regrettable results:

  1. Confirming Kavanaugh increases the likelihood that Trump gets re-elected.
  2. Confirming Kavanaugh delegitimizes any conservative wins on the Court.
  3. Confirming Kavanaugh increases the likelihood that the Supreme Court’s legitimacy will be permanently destroyed, leading to an endless cycle of Court-packing.

Let’s set aside the merits of Kavanaugh’s qualifications, but let’s at least acknowledge that the process has not been open and that there are many unanswered questions.

First: Supporting Kavanaugh means helping Trump get re-elected. Let’s be clear: Trump can get re-elected the same way he got elected in 2016. A white nationalist base got him the nomination, but he won the election because the evangelicals and pro-business elites held their noses and voted for judicial picks. It was arguably the most important factor keeping this odd coalition together. Conservatives remain positive about Trump’s job performance because of Gorsuch and judicial nominations.

Can you be a Never Trumper if you support the central goals of the Trump administration? It’s not enough to speak out against the worst and most obvious evils, like family separation. At some point, you have to oppose some of the proposals that you would otherwise support. Otherwise, what makes you “Never Trump” as opposed to someone who says they oppose Trump but is happy to get whatever wins you can from Trump?

The tax cut and the ACA repeal had the same quandary: If you want to claim the mantle of “Never Trump,” can you support the administration’s agenda? McCain’s legacy will be his speech condemning the partisan procedural unfairness of the ACA repeal, followed by his  thumbs-down vote. You can quibble with the details, but that’s as good of an example of a NeverTrump commitment I can recall – and there haven’t been many others. Actual Never Trump actions – as opposed to speeches, thoughts, and prayers – are sadly rare.

If you really think his presidency is illegitimate or an existential threat to conservatism or the nation, can you cherry-pick wins if those wins increase the chance Trump deepens his grip on power?

That’s not being NeverTrump. That’s Trump-portunism.

By helping Trump continue to re-shape the courts, Republicans are keeping Trump popular among their own base. At some point, you have to make a choice: Are you really Never Trump? Or are you But Gorsuch/But Kavanaugh?

Unfortunately, supporting Kavanaugh means supporting Trump. You cannot compartmentalize the two. If your true goal is to reduce the chance Trump remains in power, one of the clearest ways is to show that he cannot deliver for his coalition. And if your reasoning is that Kavanaugh stands against Trumpism, that’s hard to square with Kavanaugh’s remarkable record embracing the expansion of presidential power. If you are truly Never Trump, demand a nominee who would be a check on presidential excesses, from either party’s president.

I have to admit I wonder if the shoe were on the other foot, what would I do? What if an odious racist Dixiecrat or a war-mongering Democrat were appointing liberal justices? I care about abolishing the death penalty about as much as evangelicals care about overturing Roe v. Wade. I think that I could recognize that the survival of our democracy is worth a sacrifice of abolishing capital punishment, though I care deeply about that issue. Opposing an existential threat to the country is worth more than a seat on the Court and a few Pyrrhic judicial decisions, even on core principles.

The claim of being “Never Trump” rings hollow if you support his agenda and his nominees. It actually sounds more like “Maybe Trump.” Or “But Gorsuch, but Kavanaugh.” It’s time to decide which side you’re on.

  1. Confirming Kavanaugh delegitimizes any conservative wins on the Court.

If your goal is overturning Roe v. Wade, or some other conservative jurisprudential goal, this isn’t the way to create a long-lasting precedent, and this isn’t the way for public to accept such decisions as legitimate. Is your goal to win decisions on paper as soon as possible, or is it to have them be accepted broadly as law and to hold up over time?

Chief Justice Rehnquist wrote in Payne v. Tennessee 1991 that precedents “decided by the narrowest of margins” (i.e., 5-4 decisions) should be accorded less status of precedent than decisions by a wider margin. The same principle applies to 5-4 decisions, but all the more so to conservative wins after illegitimate appointments. These wins will be short-lived, because…

  1. Confirming Kavanaugh increases the likelihood that the Supreme Court’s legitimacy will be permanently stained, leading to an endless cycle of Court-packing.

What happens after 2018 or 2020? At some point, the Democrats will come back into power and hold the presidency and both Houses. There are two paths. If Kavanaugh is appointed, it seems inevitable that Democrats will add two seats to the Court. And Republicans will do the same when they hold unified power. A vicious cycle of court packing will continue, and it’s not clear when it will end. The legitimacy of the Court will have been destroyed. This is not a sustainable path. This cycle did not begin with Kavanaugh, just as court packing will not begin when Democrats add seats to the Court in the 2020s. It’s not helpful to place blame for who started this. But the Kavanaugh appointment is a kind of court-packing in itself by a president facing hard evidence of felonies and high crimes and misdemeanors.

What can be done now? Two proposals:

Create a 10th seat on the Court by a bipartisan vote, and confirm someone the Senate Democrats propose along with Kavanaugh. (It does not have to Judge Merrick Garland.) Even numbers have many advantages. In fact, the original Supreme Court had six Justices for about 20 years, and it functioned well. The Supreme Court had 8 or 10 Justices at other points in our history, and it promoted consensus. A split vote leaves the lower court’s decision standing – so that also promotes federalism or regionalism if there is no consensus of, say, 5-3, to decide the case.

Then institute a new approach to Senate advice and consent, borrowing from the merit selection panels that have worked in many states, as I’ve described in my book The People’s Courts. Those panels create a list of three potential nominees, and the governor picks one. As the “advice” stage, a bipartisan panel of Senators would have to agree by consensus– or maybe by a two-thirds vote – for a slate of three options, and if the President goes outside that list, the Senate commits not to consent. The panel could be the Judiciary Committee (not famous for its bipartisan cooperation, but alas…) If the Senate panel cannot agree to a short list by consensus, the president would be unconstrained. That might give the members of the commission of the same party as the president a reason to play hardball, but the point of this proposal is to create a long-term incentive to cooperate, and the party in power would at least consider the benefits of legitimacy by adhering in good faith to this process.

Maybe I’m being naive [correction: I’m surely being naive], but it’s a practical improvement on our current mess.  There is no need for a constitutional amendment, as long as the Senate commits to this bipartisan agreement long-term and enforces it by withholding consent if a president doesn’t cooperate. This new process would entail a sacrifice by the party in power, but that sacrifice pays off when that party is out of power, and most importantly, it has a chance of restoring the rule of law.

The Kavanaugh vote could be a turning point of court-packing leading to a cycle of court-packing. Or it could be a turning point for a new bipartisan approach.

If you claim to be a Never Trumper, now is the moment of truth. If you really think Trump is a threat to the republic, then is the price of the republic a seat on the Supreme Court? You lose your claim to be Never Trump if you support his agenda, help deliver on his promises, and increase his chances of staying in power. And confirming Kavanaugh is confirming Trump

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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