Be careful what you wish for, Senator.

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Fighting Clinton’s Court Nominees? That’s Crazy

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Senator John McCain may not have meant to say that a Republican Senate would refuse to vote, either up or down, on any Supreme Court nominee put up by Hillary Clinton. But what if Republican senators just said they would vote down any candidate Clinton nominated? Would the resulting political standoff amount to a constitutional crisis?

I think the answer is no. The court would continue to function -- and the rules of confirmation would change. Under the new regime, to fill a Supreme Court vacancy would require that one party control both the presidency and the Senate. The court would operate shorthanded, sometimes very shorthanded, until that happened. When it did, that president would get a lot of appointments, probably enough to change the direction of the court.

On the surface, this possibility might seem attractive to Republicans, especially as they face the possibility of another eight years of a Democratic president. After all, at the moment the older justices are all liberal.

In the long run, however, the shift to a high-stakes, winner-take-all strategy of Supreme Court appointments would be madness for Republicans. It would necessarily lead to elimination of the filibuster for Supreme Court nominees. Democrats would inevitably adopt the same rules. And the result would be an overwhelming incentive to nominate only the most activist, liberal judges when the president and the Senate were both Democratic.

That structure would be better for Democrats than for Republicans, for a tricky reason. Conservative justices’ activism usually consists of striking down progressive congressional legislation, which is less necessary when the president and Senate are already Republican. In contrast, liberal justices’ activism typically involves the creation of new constitutional rights that apply against the states -- a form of activism that operates regardless of who controls the presidency and the Senate.

Start with the constitutional language itself. The president gets to appoint justices with the “advice and consent” of the Senate. The Constitution is silent on the question of whether that requires the senators to take a vote on a nominee. But even if you assume that it does, in the scenario I’m describing -- and to which McCain certainly alluded -- the senators would exercise their unquestioned power to vote down all Clinton nominees.

Of course Democrats would still say that the Republicans were violating the constitutional principle that the Senate must consider each nominee, not announce rejection in advance. But that principle is nowhere in the Constitution. Indeed, the Senate could easily hold hearings each time, say it was considering each nominee on their merits, and vote the nominee down.

The resulting new normal wouldn’t be a constitutional crisis because the Constitution would formally be satisfied, and the court could continue to function, albeit with reduced manpower. It wouldn’t always have an even number of justices, either. If Ruth Bader Ginsburg, say, retires next, the court would be down to seven justices. So the argument that the court would inevitably be gridlocked on the hardest cases isn’t inevitably true.

Instead of a constitutional crisis, what would emerge would be a new quasi-constitutional political norm. No matter what Democrats might say while they control the presidency but not the Senate, they would be crazy not to adopt the same strategy when they control the Senate but not the presidency, as was the case during all of George H.W. Bush’s presidency and roughly half of George W. Bush’s.

And in the end, that would probably be worse for Republicans than for Democrats. First, it would mean the end of the filibuster for Supreme Court nominees, which still exists at the moment because the Democrats exempted Supreme Court nominations when they exercised the so-called nuclear option eliminating the filibuster for lower-court nominees. Once the president and Senate are from the same party, they’re not going to allow the other party to block their nominees using the filibuster if that party has blocked nominees while exercising a Senate majority.

The filibuster is more useful for Republicans than Democrats, because moderate Democratic nominees rarely trend left on the court, whereas moderate Republicans frequently do. Why is its own complicated story, but the asymmetry matters. It’s more useful for a Democratic Senate to force Republican presidents to choose a moderate nominee -- such as Anthony Kennedy, chosen after judges Robert Bork and Douglas Ginsburg were blocked by Democrats -- than it is for Republicans to force a Democratic president to choose a moderate, such as Justice Stephen Breyer.

And if a president gets to choose a bunch of appointees at a time, that’s also going to help liberals, because activist conservatives are different from activist liberals. With few exceptions -- including the Second Amendment -- modern conservative activists strike down laws passed by Congress, such as parts of the Affordable Care Act. They rarely announce new constitutional rights that limit state governments. That means it isn’t so useful to have an activist conservative Supreme Court when the president and the Senate are already Republican.

That’s not true of liberal Supreme Court activists, who like to declare grand constitutional principles -- such as gay rights -- that then bind the states. Those rights aren’t dependent at all on what Congress and the president do.

So the Republicans would have to be crazy to create a new norm. Which doesn’t mean it won’t happen.

  1. If you consider Anthony Kennedy liberal, as many conservatives do in the wake of his votes on gay marriage, affirmative action and abortion, and if you consider Clarence Thomas not that old at 68.

  2. The Senate was actually Democratic-controlled when Breyer was confirmed. Fascinatingly, there has been no Democratic Supreme Court nominee proposed to a Republican Senate since the Truman administration.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Brooke Sample at bsample1@bloomberg.net