The brutal confirmation battles we saw over Supreme Court Justices Neil Gorsuch and Brett Kavanaugh are symptoms of a larger problem with our third branch of government, a problem that began long before Kavanaugh, Merrick Garland, Clarence Thomas, or even Robert Bork: the courts’ own self-corruption, aiding and abetting the expansion of federal power. In Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court, Ilya Shapiro, director of the Cato Institute's Robert A. Levy Center for Constitutional Studies, takes readers inside the unknown history of fiercely partisan judicial nominations and explores reform proposals that could return the Supreme Court to its proper constitutional role. Confirmation battles over justices will only become more toxic and unhinged as long as the Court continues to ratify the excesses of the other two branches of government and the parties that control them. Only when the Court begins to rebalance our constitutional order, curb administrative overreach, and return power to the states will the bitter partisan war to control the judiciary subside.
Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, The Cato Institute and Author, Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court
Joseph Tartakovsky, Author of The Lives of the Constitution: Ten Exceptional Minds that Shaped America's Supreme Law
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Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.
Dean Reuter: Welcome to The Federalist Society's practice group teleforum conference call as today, September 22, 2020, we discuss the new book, Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court.
I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today's call, and this call is being recorded for use as a podcast and will likely be transcribed and posted on The Federalist Society's website.
We're very pleased to welcome two return guests to Teleforum today. We're joined by Joseph Tartakovsky, himself an author of the book The Lives of the Constitution: Ten Exceptional Minds that Shaped America's Supreme Law, and Ilya Shapiro. He is the Director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, but perhaps more importantly for our purposes today, the author of the just-released—and I mean just released today—the title of the book, again, Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court.
I've noted that part one of the book is a short history of confirmation battles, so it is as timely as it gets. The book, out today, available in bookstores everywhere—if you have a bookstore near you that's still open—but also available on Amazon and every online outlet you can think of in every format you can think of—not just in hardback, but audiobook, Kindle book, and even CDs. You can buy book on CDs.
I will step aside now. We're going to continue with Joseph Tartakovsky conducting an interview of our author. With that, Joseph, the floor is yours.
Joseph Tartakovsky: Thank you very much, Dean. Welcome everyone to the call. It's my pleasure to introduce the book and Ilya. It's an excellent book. I've read it. It's full of striking detail. It's balanced. It's rigorously argued, and it's quite urgent in its lessons.
We all know that timing is everything in life, but particularly so in book publication, and we'll certainly address current events. But first, everyone should know what the book is about. Let me ask you, Ilya. Tell us about the book. Why did you write this book, and what is your argument?
Ilya Shapiro: Thanks, Joseph. That is the most important and best question an author can be asked. Before I answer it, I think it's lovely that we're having turnabout as fair play because when your book—which everyone should also buy—The Lives of the Constitution came out, we had a Federalist Society Teleforum where I interviewed you or moderated your book event, so I'm glad we're able to reciprocate that. Thank you.
I was thinking about writing this book in the wake of the Kavanaugh hearings, the Kavanaugh confirmation, and I thought about -- there's this toxic cloud over public discourse generally over our politics, but now, clearly, the Supreme Court is part of that. How did we get here?
People, at least on this call, are generally familiar with the history, starting with Robert Bork, but I wanted to go right to the beginning of the republic. What role has politics played? How did we get to where we are? And, then, see if I could offer solutions. Can it be fixed? Should it even be attempted to be fixed? What lessons can we draw for potentially the next vacancy, which, as Dean said, has arrived even sooner, I think, than my publisher was hoping.
It's interesting how quickly things have changed; although, as I'll get into it, there's a continuity as well.
In 1962, when Charles Evans Whittaker, Justice Whittaker, retired, John F. Kennedy had his first opportunity to shape the Court, and it was a generational change legally as much as it was politically. "The torch has been passed to a younger generation," JFK said in his inaugural. So, he picked Byron White, a man of his own generation, 45 years old, vigorous serving as the deputy attorney general under Robert Kennedy.
Eight days after White was nominated, he had a confirmation hearing, which took 90 minutes, most of which was introductions and supporting testimony by ABA and other bar association officials. And, then, we had 15 minutes of questioning of the nominee, mostly about his football career. Surely Byron White is the last person to become a justice after playing a professional sport while attending Yale Law School.
The Judiciary Committee unanimously approved him that same day, and later that day, the Senate as a whole did on a voice vote.
I don't think any of those things is ever going to be repeated again. Of course, in the modern time, we look to Robert Bork as the big change. After President Reagan nominated Bork, having been warned by the Democrats that this would not be an easy confirmation if he went through with it. A year after Antonin Scalia had been confirmed unanimously—of course, Republicans were in control of the Senate back then—and Scalia was paired with the elevation of Bill Rehnquist who was more controversial and attracted more of the fire.
But, nevertheless, this kind of modern attack playbook that we're now unfortunately used to was first trotted out against Bork. Forty-five minutes after his nomination, Ted Kennedy went to the Senate floor to denounce Robert Bork's America -- this calumny of things that would happen if Bork was confirmed. It went downhill from there.
Bork himself did not do himself any favors in terms of talking like an academic. As Senator Paul Simon, who was on the Committee, said, "Try to make debater's points rather than asking for votes, " defying the now tried and true strategy of talking a lot without saying anything, which was certainly refined by Ruth Bader Ginsburg who first refused to comment on fact patterns because they might come before the Court, and then also refused to discuss general constitutional principles because "a judge could deal in specifics only," she said.
Now, confirmation processes were not always like this. We didn't even have public hearings until 1916. Actually, people ask me, "What do you think the most controversial confirmation was? Was it Bork, who ultimately failed, of course? Was it Thomas Kavanaugh?" "Well, no," I say, "actually, it's Louis Brandeis in 1916." Not only the first Jewish nominee but a social crusader. Very controversial. His was the longest confirmation from nomination to ultimate votes.
His margin of confirmation was broader than some of the more recent ones but hugely controversial in its day. Although, at that time, it was seen as unseemly for the nominee himself to testify, so he did not appear himself.
To give you a further idea of how political the legal environment was at the time, Justice Charles Evans Hughes resigned in 1916, after the Brandeis confirmation, to run against sitting president Woodrow Wilson in that fall's election. So, obviously, a lot of stuff going on there.
But it turns out that nominations to our high court have often been contentious political struggles. Merrick Garland, the non-actioner nominee, or withdrawn or postponed nominations—none of this is unprecedented.
George Washington had a chief justice nominee rejected. John Madison had a nominee rejected. John Quincy Adams, who himself had declined a nomination -- in the early days, you had plenty of declined nominations. I think a couple of times, people even declined to serve after they were confirmed because they hadn't found out they were nominated or confirmed until later with the way communication worked.
Anyway, John Quincy Adams had a nominee "postponed indefinitely." I love that euphemism that was part of Senate procedure back then.
Most nineteenth century presidents had trouble filling seats. Between Andrew Jackson and Abraham Lincoln, only nine of 21 nominees were confirmed. In the twentieth century, Presidents Harding, Hoover, Eisenhower, Johnson, Nixon, and Reagan all had failed nominations.
FDR never had anyone rejected, but of course, his court-packing plan was rejected hugely. After his massive reelection in 1936, he was frustrated his New Deal programs were being invalidated by the Court, so he proposed to add six justices—one for every justice who was over the age of 70 1/2. Hugely unpopular.
His own vice president ended up coming out against it. The Court, both the Chief Justice, who was, by this point, Charles Evans Hughes, and Louis Brandeis came out against it. In the following mid-terms—again, after the landslide reelection in 1938—the Democrats lots 80 seats in the House and eight in the Senate.
Opportunities for obstruction have continued even after the removal of the filibuster. Now we talk about arcane parliamentary procedures like cloture votes and blue slips, but control of the Senate remains, by far, the most important aspect of the whole endeavor.
The elimination of the filibuster for Supreme Court nominees was the natural culmination of a tit-for-tat escalation by both parties.
Most significantly, by filibustering Gorsuch, the Democrats destroyed their leverage over more consequential vacancies. It's not at all clear that moderate Republicans would've gone along with a nuclear option to seat Kavanaugh in place of Kennedy, but they didn't face that dilemma, and they're not facing it today with the vacancy created by the passing of Justice Ginsburg.
Given the battles we've seen, though, too many people now think of the justices in partisan terms. That's too bad but not a surprise when we have the culmination of several trends with divergent methods of legal interpretation now largely tracking partisan preferences or identification with parties that are more ideologically sorted than ever.
But why is that, nevertheless, such a big focus on that one office? If Secretary of State John Kerry had died or resigned in the last year of the Obama presidency, it would've been a big deal, but the slot would've been filled if someone with appropriate credentials were nominated.
But, of course, executive appointments expire at the end of a presidential term, and a president has few constitutional powers more important than appointing judges. As the Supreme Court has accumulated more and more power because it's allowed the federal government to centralize more power in Washington, and then within Washington to skew it towards administrative agencies and the Executive Branch, of course every one of those vacancies is going to be fraught.
So I can talk about—I'm sure we will, Joseph—the possible remedies for this, all these structural changes and reforms, but at the end of the day, the problem is not with the process or the structure but the product. Everything else is rearranging deck chairs on the Titanic because the Titanic is not the confirmation process but the ship of state. So, until we make the Court less important, make each seat less important, I don't think these battles and the incentives that senators, presidents, and outside groups face in having these battles is going to change much.
I'll leave it there for my opening, and I'm delighted to converse with you about this interesting subject.
Joseph Tartakovsky: Thank you, Ilya. Let me zero in on when the ship of state got on its collision course with that iceberg or constitutional Titanic.
The first half of your book is a sketch of nominations, and key points in those nominations, since George Washington. I think your book is, at least that first half, would be classified as a work of history. You, as a historian, do a very good job of distinguishing what is old and continuous and what is new and alarming, and you just did it now.
You recognize that the Supreme Court has always been important in national life. It's an entire branch, one of the three, concentrated in a handful of individuals. I found it really striking the fact that you put out that in the history of the nation, nearly a quarter of nominations sent to the Senate have failed, and that that figure's lower in election years.
But you're also suggesting that there is something new in kind, and it's partly a matter of tone, I think you suggest, sort of a bitterness. You use the word toxicity in your book. But it's a matter of the states, too, right?
Ilya Shapiro: Absolutely. Politics has always been part of the process. And in terms of tone, yeah. If anything, in 1820, political rhetoric was even worse than it is now. You can Google -- somebody used pamphlets and speeches from the John Adams/Thomas Jefferson election to make a modern-day campaign ad. It's really funny. I forget who put it out, but if you Google "Adams Jefferson campaign video." It's really remarkable the language they use.
So that hasn't really changed. What's changed is the meaning of politics, and what do we mean by "politics has always been part of the process?" In the early days -- we go through different eras. The early days of the Court, presidents picked justices to strengthen their own power, to make legitimate the national government. The Federalist Project, the great chief, John Marshall, who, by the way, was nominated and confirmed during the lame duck after John Adams lost his reelection bid to Thomas Jefferson.
So, really, there's little new under the sun. There's little that you can't find precedent for. Different presidents have different views of the Court and try to find justices accordingly, not necessarily paying attention to nominal partisan affiliation because, of course, the parties were ideological heterodox, regionally shifting in various ways. There was a lot of concern about regional seats in the early days—New England or the West or the South or what have you.
And, then, that really changed at the turn of the twentieth century when Teddy Roosevelt and William Howard Taft looked at potential nominees in what they called "real politics." Forget about whether they're a Democrat or a Republican or what faction of which party, but for Roosevelt, are they going to bust trusts? Are they progressive in certain ways?
For Taft, are they going to -- sympathetic to business and kind of a deregulatory motive? More of a classical liberal sort of Lochner era, if you will, approach.
That was inklings of that, but nobody really got that until the modern era in terms of the role that real judicial philosophy played.
Woodrow Wilson, for example, was a significant president, and steeped in jurisprudence, would think that he knew what he wanted out of judicial appointments and managed to nominate Louis Brandeis, the progressive hero, James Clark McReynolds, one of the four horsemen, the more conservative, didn't want to go along with the progressive project. Really mean man, really. Bigoted against not just Jews—didn't want to appear in the same photograph as Brandeis—but basically everybody, a couple other justices, left the Chevy Chase Country Club so as not to be associated with McReynolds. But he agreed with Wilson on antitrust issues, and that's, I guess, why he was picked.
And, then, one sort of minor figure, John Clark. Very different. This is Wilson, who knew about the law.
We have similar developments with presidents over time. What's really different now is, as I said, this confluence of judicial philosophy with party identification and the splitting and the polarization and the sorting of the parties by ideology or judicial philosophy or judicial mode. That is new, and that's why you no longer have heterodox coalitions that can possibly support.
Joseph Tartakovsky: Well, let me ask you this: You make the argument now and in the book that partisan criteria for the selection of justices has always been inevitable. You talk about George Washington wanting to firm up the New Republic. Lincoln wants to get support for the Restored Union. FDR wants people that uphold the New Deal.
It sort of sounds like partisan selection is what transformative presidents do. What's wrong with that, and what is different when you make the argument that the confluence of partisanship and judicial philosophy? How is that different from what a Washington or an FDR or Lincoln did?
Ilya Shapiro: Sure. I think, actually, there's nothing wrong with evaluating nominees based on what their judicial philosophy might be, and I don't fault senators that -- if they want to make the case that a particular nominee is going to be a detriment to the rule of law and damage the Constitution, make that case and let voters evaluate which particular method they prefer and which argument they prefer. That's perfectly fine.
In the past, though, it was more loyalty to the president or certain types of allegiances, whether party or industry based, or factions of the party or a region. It wasn't so much -- you still wanted a loyal Republican or Democrat, say, or Federalist, what have you, but it wasn't an overarching philosophy.
A president might look to a couple of issues. A wartime president might want to make sure that executive power in wartime was going to be preserved. For the New Deal, what's your view of the expansion of government? How enthusiastic a New Dealer were you? What kind of legal statements did you make?
There wasn't such a developed full-vore, orderly methodology—originalism, textualism, now for the conservatives' side—by which to evaluate nominees and thereby have a rubric for appointing them.
All of these things have crystalized in the last few decades. For a long time, lawyers were centrists or at least center-right. The legal establishment was -- it wasn't an establishment. It was sort of a moderating influence on the country so things didn't go too far in one direction or another.
The legal profession has changed over the years, and that's reflected in the role and positioning of the American Bar Association where Justice Lewis Powell, the president of the ABA, 50-55 years ago, that was considered a prestigious post and he went to the Supreme Court from that.
That would never happen now, and certainly, the president of the ABA would not be considered to be a moderating, mildly conservative sort of figure.
Politics changes, and the political issues at play change as well as the constellation of issues and how they line up with judicial philosophy.
Joseph Tartakovsky: About two weeks ago, President Trump released his list of potential nominees, and he said, "Apart from matters of war and peace, the nomination of a Supreme Court justice is the most important decision an American president can make." If recent days are any evidence, people seem to agree.
Have presidents traditionally spoken like that?
Ilya Shapiro: Not really. Lincoln certainly campaigned against Dred Scott. President Richard Nixon, when he was campaigning, talked about the excesses of the war in court, and, indeed, one of the promises was, of course, if -- given that LBJ was not successful—and it looked like he would not be successful—in filling the seat of the retiring Earl Warren, that meant that Nixon could appoint a strict constructionist, as the language went at the time.
But Supreme Court nominations have rarely been the center of an election campaign. Certainly, the 2016 experience where, I think, Donald Trump would not have won had it not been for the Scalia vacancy, is unusual in that respect.
Although, in modern times, Republicans have campaigned on the Court and on judicial nominations tied to abortion and the Second Amendment and certain other high-profile issues. But there's definitely been an asymmetry in that regard.
I think the only time in recent memory that Democrats campaigned on the Court was when President Clinton was running for reelection in 1992 in the wake of Planned Parenthood v. Casey.
That's continuing to right now. Joe Biden still hasn't released a list. At the Democrat's virtual convention last month, there was no mention of Merrick Garland let alone Ruth Bader Ginsburg. So, there's definitely asymmetry in approaches, politically speaking.
Overall, with some exceptions, presidents or presidential candidates have not campaigned on the Court.
Joseph Tartakovsky: There's lots of talk right now about nominations in election years. Sometimes it's tied to the Constitution's text; sometimes it's tied to general principles of fairness.
What do we know about nominations of justices in election years? How do they turn out?
Ilya Shapiro: Well, we've had 29 occasions where there's a vacancy created during a presidential election year not counting ones that carry over from the previous year. Like, after Bork failed, eventually Kennedy was confirmed in the election year, but the vacancy occurred the year before.
So, 29 times; 19 of those were when we had unified government. That is, the same party controlled the Senate and the White House. In all but two of those 19, there was a confirmation. And those two were—we've spoken of this before—LBJ in 1968 where it's really two for one because he was trying to elevate Abe Fortas to be chief to replace the retiring Warren, and then Homer Thornberry was the nominee to take his spot.
Of course, when Fortas went down, there was no further vacancy to fill, so it's a two-for-one failure. That was a bipartisan opposition to Fortas on ethical grounds there.
Then, conversely, when there's divided government—when the Senate and the presidency are controlled by different parties—on those ten occasions, I think only once was there a confirmation.
So that is a determining factor, and certainly it's playing into the political conversation and debate that we're seeing this week.
Joseph Tartakovsky: Let me ask you about if this can be fixed. I think everyone agrees, in Washington and across the country, that the nomination process is critical, but the way it plays out is not necessarily healthy, and in many ways, unpleasant.
We all remember the footage of Justice Scalia at his confirmation hearing puffing happily, jovially on his pipe and seemed altogether collegial. You can't help but have the impression that that tone could never happen again.
You argue that the political toxicity is sort of a byproduct of the power that the Court, over generations, has accumulated for itself. Tell us what the Court itself could do—let's start there. What sort of decisions would the Court need to make in order to start devolving itself of the power that has made it such a lightning rod in the nation right now?
Ilya Shapiro: I think the Court is as guilty as the other branches, if not more so, of getting us to where we are by a constitutional self-corruption. It needs to rebalance the constitutional order. That is, Federalism and the separation of powers, pushing back more decisions to the states, localities, and the people, and rebalancing within the federal separation of powers so to force Congress to debate and decide the contentious political issues, cultural clashes, policy conflicts rather than pushing everything into the administrative state.
We have a large, diverse, pluralistic society. There's no reason for one-size-fits-all solutions. That's why we have so much conflict.
Now, even if we had the most exquisitely poised Federalism and separation of powers, that wouldn't eliminate controversial issues from the Supreme Court's docket. We'd still have, especially, debates over what rights are protected and how -- abortion questions, gun regulation questions, unremunerated rights of all sorts would not go away under the Fourteenth Amendment because, of course, those involve claims especially against states; that states are violating individual federally protected constitutional rights.
Rebalancing the constitutional order would go a long way to turn down the heat by dispersing power. Controversy follows power. Just like my prescription for how to reform the campaign finance system. Well, shrink the size of government or the importance of the regulatory decisions it makes and you're going to shrink the size of money that's chasing it. It's kind of a truism, but I think it needs to be stated.
Joseph Tartakovsky: I think if you ask people, like on the street, and you'd say, "Why do you care about who's on the Supreme Court?" They'd say things like that they decide all these issues that are important to me whether they describe them as cultural or political.
This is something that Justice Scalia warned about. He would say things like the Court has no business in this area, whether assisted suicide, abortion, religion in schools. The Court's deciding these things.
So, it sort of sounds like you'd be making an argument for the Court to just stay out of it, like Scalia said. It has no business. Just find a way to avoid taking and deciding these cases. Is that an argument for judicial deference?
Ilya Shapiro: I don't want judges to defer. I want them to make their legal decisions. That's what they're paid to do. I don't want them to be activists. I don't want them to be potted plants. I think the proper -- I think we got sidetracked.
I think the conservative legal movement got sidetracked in responding to the excesses of the Warren Court, and before that, the New Deal Court, by saying, "What are you doing? You should be restrained. You're inventing things out of whole cloth." When the response should've been "That's an improper theory of rights or of government powers. Here's a better theory," and have that debate about constitutional interpretation, about theories of interpretation, rather than judicial modes.
I think it will be healthy for the country to debate what theory to apply, but I don't think it's healthy, or really all that understandable, to talk about restraint versus activism. Activism, at least, has become an empty term that means that the commentator disagrees with the opinion or the judge that they're commenting on.
Joseph Tartakovsky: Thank you. It's a tough balance. I'm sure there's some out there on the call that will be longing for the age that you described where justices -- there have been at least one or two cases where justices have actually resigned from the Court out of boredom. I like that fact.
I know that Hamilton refused to take a seat on the Court because he just thought it would be so boring.
Ilya Shapiro: Well, there were others who either retired early or declined because they didn't want to do the circuit riding, literally on horseback, going to the far-flung places in the early republic.
Maybe we ought to make the justices do some more of that. Maybe that would help them. I don't know.
Joseph Tartakovsky: Let me turn to the remedies, possible remedies, and structural changes. I'll ask you those questions. You advocate for term limits for justices. Why, and what's the specific proposal?
Ilya Shapiro: Advocate is probably a little strong. I'm amenable to them. In fact, I have a piece in the Atlantic out today which is an adapted excerpt from my chapter in my book on term limits.
The point is term limits won't affect the functioning of the Court. This power dynamic that I've been talking about—centralization of power and warping of separation of powers and all of that—it won't affect that. It won't even affect the average age of the justices because all of a sudden, if you have an 18-year term, which is most common—the most common proposal is 18 years or a vacancy every 2 years; a presidential term is guaranteed two—all of a sudden, people in their 60s will become eligible to be considered again.
The one thing that term limits has going for it are—two things that are related to each other—is the regular nature of the vacancies or the appointment opportunities and, therefore, removing these morbid health watch on aging justices or the political pressures. "You should retire before the end of this term so this president gets to appoint your successor." All that sort of thing. That sort of gamesmanship.
Because of that dynamic, term limits have been polled to have a lot of public confidence would probably increase a feeling of the legitimacy of the Court and things like that. For those reasons, again, purely confidence building, if you will, regularizing of the process, I'm amenable to it.
The problem is it would take a constitutional amendment to change, and I'm not sure if there is the political unity to have a constitutional amendment on that, or on anything for that matter.
By that point, we might not have an underlying problem to begin with, so it's kind of a chicken-and-egg issue but term limits, of all the different proposals, I think, are the most sound. I was convinced of that by Steve Calabresi and Jim Lindgren's article from now, 14, almost 15, years ago, a kind of exhaustive look at all that, and I commend that to the listeners here. It was published in the Harvard Journal of Law and Public Policy.
Joseph Tartakovsky: Doesn't it mention, briefly, the idea of requiring a two-vote margin for Supreme Court decisions in order to avoid the problem of a swing vote? I found that interesting because I think, at least in the popular mind, these sort of 5-4 decisions that come at the end of every term on all the most controversial questions reinforce the idea that this is really like a partisan thing. It's like a Senate vote.
How strongly would you advocate for a rule like that?
Ilya Shapiro: What's interesting is that, at least based on the social science I've seen, 5-4 decisions are not considered less legitimate by the public than unanimous ones or any other vote split.
They are marginally more likely to be overturned later on by the Court, but the public doesn't seem to have as much of a problem with them.
Look, if we were designing the Supreme Court from scratch, if we were designing a new Constitution, it might make sense to have more justices. If we had like 19 justices, we'd probably have fewer 10-9 decisions than we currently have 5-4, and each one of those 19 seats would be worth less, less powerful, than each one of nine seats.
The same thing with you have to have a two-vote margin and therefore appoint an even number of justices. There's something to commend about those based on experience of other countries.
But, of course, we're not writing on a blank slate. Given the history we've had, and given just the sheer difficulty of possible transition issues either to a larger Court or to an even-numbered Court, it really becomes a non-starter.
There are interesting theoretical things to discuss, but it's not something that I would propose myself.
Joseph Tartakovsky: Okay. Thanks, Ilya. Dean, anyone from the audience ready to weigh in?
Dean Reuter: We do have a handful of questions in our audience. I do want to add, though, if I could interject, a lament about the confirmation process that's been expressed by, I think, implicitly by you, Joseph, but also by Ilya, and that's shared in a speech that I really haven't seen discussed much. This is a speech of Justice Ginsburg herself two years ago, 2018. She received the Henry J. Friendly medal during an event hosted by the American Law Institute.
The interesting part of that speech, at least for today's purposes, begins at the 14-minute mark, roughly, where she mentions Justice Scalia's unanimous confirmation that Ilya talked about. She then talks about her own uncomplicated confirmation; the fact that she really got no questions on her role as a board member and general counsel of the ACLU.
She talks about Breyer's confirmation. And then she calls for a return for a bipartisan spirit that prevailed during judicial confirmations at that point in time. I thought that was interesting, and I thought it was worth mentioning.
Right now, we have four questions pending. Let's turn to our first caller of the day from right here in Washington D.C. it looks like. Go ahead, caller.
Caller 1: Hello. Isn't this all about abortion? Until Bork was nominated, the idea that Roe v. Wade could be overruled was not high in probability, but the moment he was nominated, that loomed large. I believe, at the time, the controversy over him was attributed to Roe. Isn't that still the story? That's my question.
Ilya Shapiro: That's definitely part of it, but it's not the whole story. In fact, the first justice who was the first nominee after Roe was decided was John Paul Stevens nominated by Gerald Ford in 1975, and he didn't get any questions about Roe or abortion. It was quite remarkable.
Sandra Day O'Connor, after that, not really questioned about abortion. Scalia and Rehnquist in '86; the focus with Rehnquist was his memos for Justice Robert Jackson for whom he clerked during Brown v. Board and other civil rights fights. Scalia was essentially a love fest.
So Bork was the first one, again, I think the fifth nominee after Roe came down, to be questioned about it. And then it sort of took on a life of its own with the development of the pro-life movement and other concerns.
But, certainly, the abortion issue, as none other than Ruth Bader Ginsburg pointed out in a speech six months before she was nominated in 1993 that got her a little hot water. There were pro-choice groups that were concerned about her abortion rights bona fide, if you can imagine, has recognized that the way that the Court handled that issue has certainly poisoned the well of our confirmation processes since, but it's not the whole story.
Dean Reuter: Let's turn to our next caller.
Caller 2: Hello. Good afternoon. Behind the scenes, there have been some threats to pack the Court as happened back in the 1930s. I'm wondering something interesting. Even though it's true that the number of justices is not found in the Constitution—that's undisputed—and it's a matter of statute, I'm wondering -- there's a whole lot of other things that are not found in the Constitution that the Court has struck down or discovered that are in the Constitution.
I'm wondering if there's a possibility that if they would try to pack the Court that the Supreme Court would say, "This violates our tradition. You're interfering with a different branch of government," and the Court would strike it down much as it redefined marriage and has redefined the rights of unborn babies.
Ilya Shapiro: Well, changing the size of the Court, or at least expanding it -- you can't eliminate life tenure. Several times there have been pieces of legislation to reduce the Court by not replacing the next couple of justices that would leave. But expanding the Court requires a simple act of Congress signed by the president.
That would mean, in practical terms, getting rid of the legislative filibuster, which is currently set at 60 in the Senate, and then passing a simple piece of legislation: The Judicial Reform Bill of 2021 and adding however many seats you want to add.
I don't think there's any basis to strike something like that down, so it's much more of a political issue than it is a legal one.
I'll say, historically, when, not just FDR—the famous failed attempt at Court packing—but even the previous expansion of the Court -- we've had as many as ten and as few as two seats on the Court. But each time there's a change, there were political conveniences, shenanigans, however you want to characterize it, involved that did not inure to the long-term benefit of the party who put it in in the first place. So not buyer beware but politician beware but politician beware, I guess, with Court packing.
Dean Reuter: We still have three questions left, a little bit over 15 minutes. Caller from Colorado, it looks like. Go ahead, caller.
Caller 3: Yes, that was going to be my exact question; the question the previous person just posed. I would push back a little bit saying I think I've heard theories that abolishing Chevron deference or abolishing stare decisis as a principle would be unconstitutional as separation of powers matters.
Of course, Congress can't change the result in individual cases, so perhaps there's enough there that a district court could maybe issue a national injunction preventing Congress from adding four justices to the Supreme Court as a way of changing the outcomes in cases? If there's nothing more to add, I don't mean to belabor the point, but those are some things I thought of.
Dean Reuter: Very good. Ilya, you want to respond there, or shall we go to the next caller?
Ilya Shapiro: Yeah, let's go to the next.
Dean Reuter: Very good. We've still got three questions pending, so people are joining the queue.
Caller 4: Yes, thanks very much. Turning back to the question about remedies. I know it's not at all uncommon for people to bemoan a golden age, and it sounds like there was a time that confirmations were less contentious, but wishing for that is -- there's a rhyme something about candy and nuts.
I guess I would propose, or dutily suggest for discussion, some remedies that already exist in the Constitution and don't have the problems that some of the ones your author articulated. I think if you add to -- you try to make two-vote majority or you put in an 18-year term limit, I don't think it removes the gamesmanship; it just shifts it somewhere else. If an 18-year term, then that means that that may affect the judge's decisions if they're hoping to be reappointed coming to the end of their term.
What about more vigorous use of judicial impeachment? It says that the justices are appointed during good behavior, and if a judge fails to follow the law in making judicial decisions; if they manage to find rights that are perched fierily in midair without constitutional basis or something like that, or for whatever reason the people or the people's representatives find him sufficiently off the rails, what's wrong with impeaching a Supreme Court justice?
Ilya Shapiro: There's nothing wrong with it. It's a political question just like impeaching a president is. It's been done once with Samuel Chase, and much more with lower-court judges. I don't have the number off the top of my head, but I think it's 17, and a couple of times by cabinet officials generally for ethics violations and other kind of improprieties not a difference in politics or policy.
But certainly -- I don't know if I want to establish a standard of impeaching a justice with whose interpretation you disagree. That's to be done on the front end. I think impeachment should probably be reserved for actual wrongdoings and abuses rather than disagreements about interpretation.
But on the front end, I think it's absolutely appropriate to question judicial philosophy and vote accordingly.
Joseph Tartakovsky: This is Joseph. This was a place, Ilya, where your book was good in showing how much just the quirks of history determine these things on the question of impeachment. They tried it with Justice Chase. His conduct was pretty flagrant in the sense that he was sort of making political speeches from the bench, sentencing people to jail for political reasons.
But the impeachment failed because of this tradition that you describe which is that we just don't go after judges based on the quality or the lack of quality of their decisions. It's something sort of extra-judicial like their conduct outside of court or taking money, something like that. [CROSSTALK]. Okay, go ahead.
Ilya Shapiro: The thing is with Chase, as you describe, his political bias and arbitrary rulings and things like this, it was almost a Marbury v. Madison situation in the sense that this was an exception to the rule. That is, his behavior may well have warranted impeachment and removal, but by not removing him for it, it did set that high bar for clear abuse and misbehavior not simply disagreements over interpretation.
Joseph Tartakovsky: Thomas Jefferson said something like, "I predict that no one will ever try this again," and he was actually quite right about that. Back to you, Dean.
Dean Reuter: Well, thanks, Joseph, for getting us back to the book. I'll repeat for those who might've joined late that we're speaking with Joseph Tartakovsky and also Ilya Shapiro who's the author of the book Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court. It's available now. It's out today. It's being highly recommended by our other guest. Knowing Ilya Shapiro as I do, I also highly recommend it, although I don't have my hands on a copy just yet.
Let's turn to our next caller.
Ilya Shapiro: Trust but verify, Dean. I'll take that reference but you really do need to read it.
Dean Reuter: I certainly will read it, Ilya. It's on order, but it hasn't been delivered to me yet. It was promised to me today by Amazon.
Ilya Shapiro: By the way, this is a good moment for me to say that anyone who buys it, if you email me your mailing address, I'm happy to send you a signed book plate. We don't have in-person signing at The Federalist Society Convention or your local bookstore this year, but I'm happy to at least send you a sticker with my John Hancock on it.
Dean Reuter: Very good. We've got three questions pending still. Area Code 810, go right ahead, caller.
Caller 5: Yes, good afternoon. My question is why does there seem to be almost like a double standard for Republican-nominated judicial nominees as opposed to Democratic-nominated ones in regards to abortion?
It seems like ever since Bork, conservative nominees have got to do this very delicate tiptoeing around Roe v. Wade whereas Ginsburg could almost blatantly indicate her support of it under the guise of stare decisis. I, personally, share Justice Thomas' irreverence for stare decisis except for when, every now and then, the Court makes the decision right, I guess, or makes the right decision to put it better.
Also, getting back to remedies and as far as the threat in restructuring the Court. Say, for example, what are your thoughts if Biden wins and they also conveniently get a Senate majority as far as removing seats and they just conveniently remove some of the Trump-appointees or letting them finish out their term? Or giving some of the more older conservative ones?
Ilya Shapiro: Sure. I'm not sure what the first question was. The second question is, of course, if the Democrats win the Senate and the presidency, there won't be a new Senate until January 3 or a President Biden until January 20, so there still would be the lame duck in which the Republicans could confirm the nominee.
Of course, then there would be probably a greater threat of court packing. You have a three-dimensional game of chicken. Who knows what would happen then. The Democrats might court pack regardless of what the Republicans do.
I don't see the Democrats removing seats. They would fill any that are available and add more because the justices that are currently there are there for life, on good behavior, the Constitution says. So you can't remove them.
They couldn't specify that the seat occupied by Clarence Thomas and Sam Alito will not be filled. I don't know whether they could or not. They would have to say just the next two will not be filled. It's a complicated game, theoretical puzzle, about whether to hold the vote before or after, how that would drive out the base, and then, after the election, depending on who wins the presidency and the Senate, how that affects things.
I'm a simple constitutional lawyer. I'm not about to give political advice to Mitch McConnell or anyone else.
Dean Reuter: We've got about eight minutes left; two questions pending, so I think we have time for both of these. Let's turn to our next caller.
Caller 6: Yes, good afternoon. Thanks for this great teleforum. I'd like to put Ilya on the spot and ask him if it was entirely up to him, who would he choose to be the next Supreme Court justice?
Ilya Shapiro: That is putting me on the spot. Let's see. How do I want to answer this? I think it's public that my favorites from the previous go around were, in no particular order, Mike Lee, Tom Lee, Diane Sykes, Don Willett, David Stras, Amul Thapar. I think that's six. I like others. Jim Ho I like, who's on the new list. I'm very careful not mentioning the people that are being mentioned for this current opening. I'm not going to comment on that.
Joseph Tartakovsky: I notice you didn't mention me, either, but that's obviously because I'm the host of this particular Teleforum.
Ilya Shapiro: Yeah, Joseph, you and I are on the deep track B side of any kind of long list to get to.
Dean Reuter: Fair enough. We've got one question pending. Go ahead, caller.
Caller 7: Yes, I just want to comment and a question. Has anyone ever done a hypothetical calculation that if every party who gets in wants to add Supreme Court justices in order to favor their particular political philosophy how big the Court would be in 40 or 50 years? If you did the arithmetic and everyone's adding three or four or five judges, you're going to have a huge Court at some point.
My question really is this: There is certainly a perception that the appointment of Supreme Court justices and other federal judges really have a political point to them because of many of the decisions that are made that are perceived as being, theoretically, within the judicial branch.
So, isn't the effect of this really to turn every appointment, in effect, into an election as to what you think these judges may or may not do? Not only at the Supreme Court level, but also in the court of appeals and also in the district court. You see opinions and comments by judges that leave you sort of short of breath as to why it's their business.
There was a judge in the area where I am who was advising one of the automotive companies of where they ought to be spending their time, and they shouldn't be involved in this litigation. To me, that's like unfathomable why it's that judge's opinion.
Ilya Shapiro: I don't know if characterizing each vacancy battle, whether Supreme Court or lower court, as an election. The Senators are the ones who vote, so I guess it's an election among the senators of judicial philosophy but other considerations as well because if you're from a swing state, then your calculus is different than if you're in a safe seat.
Voters, I guess, part of their calculus, is increasingly, when they're picking a president, is what kind of judges they want, but it depends what issues they prioritize. If they care about the economy above all else, then they'll just think about that. If they care about -- whatever their top issues are and however much weight they put to the various issues that they care about, among which judges is certainly one.
But you're right about the court packing. In fact, you and I, and I agree with you on that, are in agreement with Bernie Sanders. Possibly the only thing on which I agree with Bernie Sanders is that he said, when he was asked about court packing, he said, "Nah, that's crazy. The next time the Republicans get power, they're going to add two more and I’m not going to move [inaudible 00:53:37]. In 50 years, there's going to be 87 justices. That's insane." No truer words were spoken.
It's kind of funny that Sanders, and of course, Biden, the eventual nominee, the two front runners in the Democratic primaries, were the only ones who categorically took court packing off the table. The other candidates were much more amenable to it, if not advocating it.
Biden has kind of been noncommittal when he's been asked in the last few days. As we know, he's always trying to be in the middle of wherever his party is, and I'm sure that if there's enough support in the Democratic caucus in the Senate and in the House to pack the court, I'm sure he would go along with that.
Caller 7: Can I ask a follow-up question?
Dean Reuter: I'm sorry, we've moved on. I disconnected that caller. Let's try and get a final question from Area Code 561. Go ahead, caller.
Warren Belmar: It's Warren Belmar. Thank you for an excellent program. How disruptive would it be if on January 3 there was still a vacancy and the president chose while the Senate is in that limited recess to make a recess appointment to the Court?
Ilya Shapiro: The recess these days is kind of like the length of -- the length of the recess is equivalent to measuring the number of angles on the head of a pin because it's basically the course of one gavel strike. There are no more Senate recesses, just the way the gamesmanship has worked.
I thought you were going to ask me something else: What happens if there's vacancies in the Senate because of disputed elections or what have you, which I suppose is possible. You could have a 49-49 Senate with two unresolved results.
As always, the vice president breaks ties, whether it's 50-50 or it's 48-48. A lot of gamesmanship. And, then, what if there's a disputed election and there's only eight on the Court? You can game out and novelize a whole lot of different scenarios, hairy situations, that we could face over the next several months.
Dean Reuter: I'm going to give Ilya Shapiro a chance to express a final thought since we've got maybe 60 seconds left.
Ilya Shapiro: Sure. The lessons to draw which are very relevant to the current vacancy and confirmation battle to come are, one, that politics has always been part of the process. We talked about both in terms of the history and the statistics.
Two, confirmation fights are now driven by judicial philosophy. That's something different. It's no longer geography or patronage or party politics; it's judicial philosophy.
Number three, modern confirmations are different because the political culture is different. Part of that is Roe v. Wade and Robert Bork and the escalation since then. Part of it is the polarization, both ideological and geographic, that we've seen in the country. All sorts of things.
Number four, hearings have become kabuki theater. I've actually come around to the idea that, at least for the Supreme Court, public confirmation hearings do more harm than good to our public discourse, especially given that we can learn about the nominees and their paper trails on the internet instantly, and there's very little educational value either about them or about the law from the hearings, which are all the senators trying to have gotcha moments or throw softballs, depending on their side, and the nominees trying to talk a lot without saying anything.
Next, every nomination can have a significant impact for all sorts of reasons. You can have surprise results based on party and different types of, say, Republican appointees. Now you think about the five Republican appointees currently serving. They all have different philosophies, different modes, different things that they're known for, so every nominee can be a shift.
Of course, the hardest confirmation comes when there's a potential for a big shift. That's why Clarence Thomas was a big deal. He was replacing Thurgood Marshall. About a big a swing, ideological swing or jurisprudential swing, as we've probably seen, certainly in the modern area. That's why Kavanaugh replacing Kennedy was a bigger deal than Gorsuch replacing Scalia, and it's why the forthcoming Trump nominee replacing Ruth Bader Ginsburg is going to be a big deal.
Next, the Court rules on so many controversies that political battles are unavoidable. That's what I began with. Congress passes the buck to the executive. Congress aggregates so much power to the federal government. And plus, the rights claims and the cultural issues that the Court's ruling upon. Each of those seats is going to be -- the battle is going to be fraught and there's not that much we can do about it in terms of changing the process or putting in different structures.
Dean Reuter: We will leave it right there. Again, Ilya Shapiro, the author of the book title, again, Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court. I recommend it.
Joseph Tartakovsky, thank you so much for your time and for leading the conversation today. But special thanks to Ilya Shapiro, and congratulations, Ilya, on publishing the book.
With that, a reminder to our audience to check your emails and monitor the website for our next coming teleforum conference call. But with that, we are adjourned. Thank you very much, everyone.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.