A Primer On Permanent Stalemate: Federal Judicial Selection, Post-Election
October 1, 2016

In the New Yorker’s October 3 issue, Jeffrey Toobin attempts to predict the future in “The Supreme Court After Scalia.” Mr. Toobin devotes much of the piece to discussing how the progressive-conservative balance of the Court might change with a ninth Justice replacing Scalia if Secretary Clinton or Donald Trump is elected, and the ensuing consequences in significant cases the Court might consider concerning abortion, affirmative action, voter’s rights, campaign finance, and other issues.

Mr. Toobin is always a thoughtful and perceptive analyst. I don’t watch him on CNN, but I avidly read his “Annals of Law” short columns and long-form pieces in The New Yorker. His 2014 overview of Ted Cruz, for example, is a thorough - and thoroughly harrowing - introduction to the junior Senator from Texas.

Mr. Toobin correctly observes that appointment of a progressive/liberal Justice by a President Clinton would create the first liberal majority of Justices since the Nixon presidency. That progressive/liberal majority could become an enduring one if Clinton’s allowed to appoint more Justices to replace older progressive Justices (e.g., Ginsberg) and retiring conservatives (e.g., Kennedy). Of course, Toobin also notes how the Court could move in a decidedly conservative direction if Trump wins, though predicting what Trump actually might do is no better than guesswork given the Republican nominee's irrational, vindictive, and impulsive temperament.

Earlier in my checkered career, I conducted research on, and wrote at length about, federal judicial selection. I’ve continued to follow developments in the area, and I consequently recommend Mr. Toobin’s latest piece to C&L readers. As usual, Mr. Toobin has many smart and useful things to say about current politics and judicial selection issues, federal judicial selection generally, and the process and outcomes of Supreme Court decision-making.

That said, Mr. Toobin makes what appears to be an highly questionable assumption about post-election appointments to the Court. He also omits additional important points he might have made. (As to additional points, he probably just ran out of time and space, because the issues he addresses are multivariate and the possible outcomes are myriad.)

First, and most importantly, he appears to assume that a President Clinton will actually be able to add Justices to the Court and judges to the lower federal courts during her presidency: he writes, “The future of the Supreme Court always depends principally on the outcome of Presidential elections; this year’s race will have a nearly immediate impact on the fate of the Court.”

This year, unfortunately, I’m not sure this is true. Or, it’s not true in the way he intends.

Our Constitution authorizes the President to nominate Supreme Court Justices and the Senate to advise and consent (or reject) the President’s nominees. The President also has constitutional “recess” authority to appoint Justices (and lower-court federal judges) without immediate Senate consent, but that power is rarely used, especially with Supreme Court Justices.

As C&L readers know, this nomination-advice-consent process ground to a halt when Justice Scalia died. In an unprecedented act, Mitch McConnell, majority leader of the Senate, refused to allow a vote - or even a confirmation hearing - on Merrick Garland, President Obama's nominee to replace Scalia.

As C&L readers also might know, McConnell (R-Feckless Unrelenting Obstruction) had also largely halted consideration of Obama’s nominees for lower-court vacancies, though, through this date, President Obama’s filled 329 federal judicial vacancies, on a par with George W. Bush (324) and Bill Clinton (372).

On Scalia’s death, McConnell (R-Expletive Deleted) announced that, “The American people should have a voice in the selection of their next Supreme Court Justice.” McConnell added, “Therefore, this vacancy should not be filled until we have a new President,” and he appears to define “new” as “post-inauguration in January 2017.”

Right now, it looks like the U.S. will have its first woman President, but the Senate will remain in Republican control.

I’m not at all sure the judicial confirmation process will restart after the inauguration in January if different parties control the White House and Senate. It’s not a stretch to imagine Mitch McConnell (R-Third Circle of Hell) declaring that the American people’s “voice” has spoken in favor of the status quo - no new appointments until both the Presidency and the Senate are controlled by one party.

Second - and also very dangerously - this unprecedented stalemate might become the new normal now that it has been established. The constitutional powers of presidential nomination and Senatorial advice-and-consent require a critical mass of collegiality across parties to operate when neither party controls both branches. As the partisan divide in politics has worsened, the kind of cooperation (reluctant at times) that we have usually seen across presidencies and senates divided by party might disappear forever.

So, we might see federal judges and Justices appointed only in times where one party controls both the White House and the Senate. This could mean huge swings in staffing of the federal courts, with serious and chronic impairment of their efficiency, to the detriment of civil litigants and - inexcusably - criminal defendants, who have a constitutional right to a speedy trial.

As Mr. Toobin notes, there are risks for McConnell (R-Worse Than You Can Imagine) in maintaining the stalemate. With only eight justices, the Court has been divided 4-4 on many recent cases. 4-4 ties mean affirmance of the lower-court decision, whatever the lower-court outcome, without precedential value.

A number of the 4-4 affirmances have come in cases where liberal lower-court judges have dictated the outcomes. And, in a couple of major cases, Kennedy has voted with the liberal bloc. So, as Toobin noted (quoting Carrie Severino, the chief counsel of the Judicial Crisis Network),

Losing Justice Scalia on the Court created a one-way ratchet, making it so much easier to move in a liberal direction. Every time Kennedy joined the conservatives, there was just a tie, and no real precedent was made. But when Kennedy joined the liberals they could set binding precedent.

Thus, McConnell and his Republican Senate majority run the risk of more 4-4 affirmances and 5-3 outcomes in favor of progressive judicial outcomes. On the other hand, a number of the 4-4 outcomes have occurred in cases where conservative lower-court judges and appellate panels handed up their decisions for review by the Court.

In either event, judicial systems like ours generally function efficiently only when the lower federal courts can look to the Supreme Court for uniform and clear - or clearish - precedential guidance.

So, a third problem with the current stalemate is that lower courts in different circuits - right, left, and “center” (wherever that is these days) - are freer to fashion diverse and potentially contradictory results: federal “law” and “rights” in Alabama can become different (even more different?) from those in California or New York, for example. If there is less binding “law,” there is less predictability and less efficiency in the federal legal system.

More significantly, federal rights and duties would be unevenly and unfairly allocated across the country. For example, abortion rights might be stringently protected in some regions and states and less so - much less so, and maybe not at all - in others.

Finally, a fourth issue...suppose Clinton wins and is allowed by McConnell (R-Political Excrescence) to appoint a replacement for Scalia after her inauguration. Justice Kennedy - whose substantive positions in specific cases are the most difficult to predict on the current Court - might feel freer to side with the conservative members of the Court.

Kennedy’s migration back to the right would set the stage for a host of 5-4 decisions that reflect partisan divisions in our public life, rather than a more bipartisan approach to federal governance.

“So what?” you say. “Who cares?” It matters: 5-4 decisions fuel cries of “Partisanship!” and “Illegitimacy!” on both sides of the aisle. That hasn’t helped the credibility of the Court or lower courts in recent years (see, e.g., Bush v. Gore), and it will likely worsen the Court’s stature as and if it persists.

Of course, things could change between now and Election Day. Trump might pull ahead or more Senate seats might move into the Democratic column. In either case, the federal judicial stalemate would (might?) end after the election. In light of the current political polling trends, however, I am doubtful that will happen.

Here’s the bottom line for C&L readers (and voters and activists): if you want a fully staffed Supreme Court with a progressive majority and continuing confirmation of liberal and progressive lower court judges, you must vote and get out the vote now and through Election Day. Otherwise, there’s a real chance the Court and its subordinate courts will limp along or risk complete collapse - much like the rest of our divided government.

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