Replacement Theory

On the day that mourners were filing past the casket of Antonin Scalia in Washington, America learned that Harper Lee had died – her one book on the common decency of one man made Americans feel good about themselves for many generations – and then Gregory Peck became Atticus Finch. All was well, until that second novel late in Lee’s life. Atticus Finch really wasn’t all that nice a man. It seems that Harper Lee didn’t want to be seen as a sentimental fool. Few will forgive her for that – and then late in the day the world learned that Umberto Eco had died – “the Italian scholar in the arcane field of semiotics” who became the author of best-selling novels no one quite understood, but probably did, because the world is mysterious, and the language we have to use to understand it is even more mysterious, but somehow it all makes an odd sort of sense. Harper Lee would expand your heart, with that late second novel urging a bit of caution with that sort of thing. Umberto Eco would expand your mind. You’d be thinking thoughts you never thought you’d ever think. Cool. Those two were amazing. Those two can never be replaced.

Antonin Scalia, however, can be replaced. In fact, he must be – the Supreme Court is now down to eight justices, four conservatives, essentially four liberals, and decisions on hard issues now will now end in a tie – lower court rulings will stand, or the eight remaining justices will say come back and argue again next year or the year after that. Nothing will be decided, definitively – on voting rights or immigration enforcement or environmental stuff or most anything else where folks are hot and bothered – for a long time. That’s a bit alarming, but the Senate confirms these justices, and it’s an election year, and the solidly Republican Senate said they’ll do no such thing. Let the people decide. In the full fourth year of a president’s second term, no one has to take him seriously. He no longer matters – the country is deciding its future – he’s part of the past – he’s history – forget him. Everyone knows this, so let the people decide – the court will be just fine with eight justices until the middle of 2017 or so. That’s what we’re looking at – with a new president sworn in on January 20 next year and then all the hearings and whatnot.

Many find that unacceptable. The short-handed court will probably deadlock on everything – we’ll have eighteen months of legal chaos with everything important in limbo. The Republicans are saying that this short-handed court will indeed probably deadlock on everything, but life will go on – and it will go on – badly, many say. Their argument that Obama no longer matters in the great scheme of things seems a bit academic, and also a bit dangerous. Their rules for such things seem odd. Did they just make up all that? Is Obama arrogantly ignoring the rule that no president in his fourth year in office has any right to nominate a Supreme Court Justice? God, he really is an arrogant bastard!

That’s what they’re selling. Josh Marshall isn’t buying:

This is a small part of the larger avalanche of truthy non-facts about the rules for nominating Supreme Court Justices. But particularly because of the speaker, Marco Rubio’s comments are worth looking at closely. As a repeater rather than originator of ideas, spin and so forth, his words give us an up-close view of the alchemical process through which bullshit and nonsense are transformed into readily accepted viewpoints that journalists are apparently incapable of not accepting as actual ideas.

Since quite a lot is at stake in the replacement of Justice Antonin Scalia, Republicans have decided to go to the entirely unprecedented step of refusing to hold a confirmation vote on President Obama’s nominee, on the hope that a Republican will win the presidency in 2016 and thus avoid changing the composition of the Court.

They can do this. There’s no power in our system to prevent it. It isn’t unconstitutional, as some have suggested. It would be better call it non-constitutional, since it ignores the express responsibilities assigned to the Senate. But, whatever – they can do it.

But in the few days since Justice Scalia’s death, there’s been a rush to manufacture some precedent or argument for why this is anything more than a power play. One of the choicest has been this idea that there is a precedent or tradition going back eighty years that Supreme Court vacancies that come open in the last year of a President’s four year term, i.e., in an election year are deferred to the next president.

Okay, what he’s talking about is Marco Rubio saying this:

This is a tradition that both parties have lived by for over 80 years where in the last year if there is a vacancy in the last year of a lame duck president, you don’t move forward. The president can nominate someone but the senate has said we’re not moving forward on it, that the next president should have the opportunity to fill this vacancy. We’re going to have an election in November. This will be an issue in the election where the candidates will describe the kind of justice they would appoint. I think that will be one of the factors how they make their decision and then the new president can appoint someone and the senate should move forward on the confirmation process then. I don’t think you should appoint someone to a lifetime appointment by a lame duck president who is no longer accountable to the electorate.

That sounds so reasonable, but not to Marshall:

Technically speaking, this is complete horseshit, which has no factual basis whatsoever. But let’s look at the argument.

First of all, there’s no tradition or precedent about this whatsoever. What Republicans are hanging their hats on is the fact that Supreme Court vacancies don’t happen very often. Over there last eighty years, they’ve only happened during an election year a few times. So the argument comes down to: Look, we haven’t held confirmation hearings during an election year in 80 years. So it’s a tradition not to hold them. And that’s a longstanding tradition.

But that’s because there weren’t any vacancies! So basically it means nothing. It’s a logical sleight of hand that, if it were a magic trick, would probably get past a dog but probably not even most primates.

And the few times it did happen show us nothing:

The “eight decade” marker refers to Herbert Hoover’s nomination of Benjamin Cardozo in February 1932. (Hoover of course went on to lose that election to Franklin Roosevelt.)

Then just eight years later, Franklin Roosevelt nominated Frank Murphy in January 1940 (Roosevelt had yet to officially announce that he planned to run for a third term as President.)

Then it happened again in June 1968 when Chief Justice Earl Warren announced his retirement. President Johnson nominated Abe Fortas, then an Associate Justice. Fortas’ nomination ended up being withdrawn about a month before the 1968 election (by which time Johnson has announced he was not running for reelection) because of a mix of ethics questions and Southern Democrats concerned about the liberal direction of the Court under Earl Warren. Fortas resigned from the Court entirely after the ethics issues bloomed into a full-fledged scandal in 1969. So President Nixon ended up nominating the replacements for both Warren and Fortas.

After that it didn’t happen again until 1988 under President Reagan. In this case, it gets sort of technical since Justice Anthony Kennedy was nominated on November 30th 1987 and confirmed on February 3rd 1988. So which date counts in terms of the non-existent “no SCOTUS vacancies filled in an election year” rule? How many corners does a circle have? Three or four? It makes about as much sense.

This isn’t hard:

The whole argument is nonsensical: the fact that there haven’t been any vacancies in an election year means there’s a tradition of not accepting nominations in an election year, which of course makes no sense – except for the fact that it actually has happened three times. And never was it suggested in any of these three cases that the mere fact that it was an election year was an argument for rejecting a nomination, let alone not even holding hearing or holding a vote.

And the “lame duck” argument is nonsensical too:

This appears to mean that a second term president should not nominate Justices for the Court after their reelection (so Obama’s been out of luck since early 2013) or at the latest after the mid-term election in their second term (in which case he was out of luck a year ago). If the former case, then Alito and Roberts wouldn’t have been legitimate either. And in any case, even the idea that no Justices should be replaced in the last two years of a two term president’s time in office is blatantly contrary to the intent of the constitution and simply preposterous.

But again, consider that this argument is being made all over the place by all sort of senators, presidential candidates and an almost countless list Republican yahoos. And reporters treat it as a reasonable argument in the debate.

They do, but that’s because there are no rules. At least that’s the argument that Miguel Estrada and Benjamin Wittes make here:

Here’s a simple piece of advice for anyone confused by the partisan politics of replacing Justice Antonin Scalia: Assume that anyone who claims to be acting out of a pristine sense of civic principle is being dishonest.

We have both argued for a world in which judicial nominees receive prompt hearings and up-and-down votes based solely on their objective qualifications – education, experience and temperament. But that has not been our world for at least two decades. The savvy citizen should recognize as much and heavily discount anyone who speaks in the language of principle about the rules or norms that do or should govern the treatment of either a judicial nominee or the president who sends that nominee to the Senate. As recent history demonstrates, the only rule that governs the confirmation process is the law of the jungle: There are no rules. There is no point in pretending otherwise, as much as many of us wish it were not so.

They should know:

One of us was a judicial nominee who never got a vote from the Senate but who nonetheless publicly encouraged the Senate to support President Obama’s appointees, including an overwhelmingly qualified Supreme Court nominee of the opposite party. The other wrote editorials for the Washington Post for many years decrying unreasonable Senate treatment of nominees of the Bill Clinton and George W. Bush administration alike and also wrote a book arguing for a restoration of norms of expeditious and fair consideration of nominees. Both of us believe that when presidents nominate qualified nominees, the Senate should confirm them, and that courts should be fully staffed at all times to dispense justice to the litigants who come before them.

Look up Miguel Estrada and Benjamin Wittes – these two know what they’re talking about, and they’re discouraged:

Rarely has either of us lost an argument more completely at the hands of the entire political culture than we have lost this one.

Republicans and Democrats put the blame on the other for the complete abandonment of rules and norms in the judicial confirmation process. Both are being insincere – whitewashing their conduct over a long period of time while complaining bitterly about the very same conduct on the part of the other side. Both have chosen, in increments of one-upmanship, to replace a common law of judicial nominations that was based on certain norms with one based on power politics alone.

Today, there is no principle and no norm in the judicial nominations process that either side would not violate itself and simultaneously demand the other side observe as a matter of decency and inter-branch comity.

That’s sad and the current business is sadder:

There were several good reasons for Republican senators to move a nominee advanced by Obama late in his tenure. One was that the Senate owed an institutional duty to the executive branch to consider presumptively qualified nominees in a fair process. Another was the knowledge that someday, the shoe would be on the other foot. A Senate of the opposite party would confront a late nominee of a president of the opposite party. We all seemed to agree that we would rather live in a world in which both nominees got considered than in a world in which neither got considered. In that world, comity, fairness and long-term self-interest of both parties all pushed towards a relatively predictable, relatively humane (to the nominee), relatively deferential (to the president) process.

In a world in which those norms do not have force, there is no reason in principle to demand that Republicans move a late-stage nominee from Obama.

Ah, but norms are not the same thing as rules:

Certainly, the Constitution doesn’t require it of them. All the Constitution gives the president is the power to nominate whomever he wishes for a judicial vacancy. The Constitution expressly provides that the power to appoint may be exercised only with the affirmative concurrence of the Senate. If the Senate does not act at all – for a good reason, for a bad reason, or for no reason at all – that is the constitutional equivalent of the Senate’s rejection of the nominee. The Constitution doesn’t require the Senate to engage in any process at all beyond sitting on its collective hands. All of those expectations were merely a matter of the norms the political parties have so cheerfully torn down.

If the president or a senator of either party tells you differently, ask him or her how is it that both parties have systematically blocked judicial nominees of the other party – using the filibuster and other parliamentary tricks – for the past two decades. The whole purpose of these maneuvers is to prevent the Senate from giving an up-or-down vote to qualified nominees in the expectation that the nominee will eventually go away and the Senate will not have to vote on the merits of his or her nomination. As a senator, Obama filibustered nominees. So did then-Senator Hillary Clinton. And, of course, the Republican caucus also filibustered Obama’s nominees early and often. Even before the filibuster had been normalized, both parties – when in the majority – refused to schedule hearings on the candidates nominated by presidents of the other party or did so only with lengthy delays. Each of those instances involved, in the current parlance, the Senate “not doing its job” and leaving judicial vacancies open for years. If all of that was unconstitutional, then both parties conspired to dispose of the document a long time ago.

They didn’t dispose of that document. It was simply silent on all this, so we are where we are:

Lest any reader think we are making a partisan point here, we hasten to emphasize that if the Senate and the presidency flip hands in November, we also think there will be no principled basis to demand that a Democratic Senate ever consider a nominee by President Trump, Cruz, or Rubio. The decision on the part of a future-Majority Leader Charles E. Schumer at that point is that a 4-to-4 court is a better long-term equilibrium for him than confirming a nominee of the other party will be exactly as defensible as current-Majority Leader Mitch McConnell’s decision today that a 4-to-4 court is a better short-term equilibrium for him than confirming a nominee from Obama.

Whatever elevated rhetoric anyone invokes to suit his or her convenience, the fact is that our real judicial nominations system is now one of raw power and nothing else.

That’s why conservative planning for this Supreme Court vacancy predates Antonin Scalia’s death – these guys had been working on amazing new “rules” for how things had always been done for months. This was a preemptive strike. The political press never knew what hit them. They reported that Obama was breaking all the rules again. At least they reported that for a little while. They’re only now beginning to realize that they’ve been had – unless they’re being lazy and saying that guys like Marco Rubio are only being sensible – they’ll look up the facts later.

But Estrada and Wittes seem to be right. There are no rules in this matter, only vague norms, but then, if so, two can play this game. In the New Yorker, Lawrence Krauss says that Antonin Scalia himself unwittingly suggested that it was time to put an atheist on the Supreme Court:

Who should replace Antonin Scalia? On Monday, the New York Times reported that the Justice himself had weighed in on the question: last June, in his dissenting opinion in the same-sex marriage case Obergefell v. Hodges, Scalia wrote that the Court was “strikingly unrepresentative” of America as a whole and ought to be diversified. He pointed out that four of the Justices are natives of New York City, that none are from the Southwest (or “genuine” Westerners), and that all of them attended law school at Harvard or Yale. Moreover, Scalia wrote, there is “not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination” on the Court. (All nine Justices are, to varying degrees, Catholic or Jewish.)

Scalia’s remarks imply that an evangelical Christian should be appointed to the Court. That’s a strange idea: surely, the separation of church and state enshrined in the Constitution strongly suggests that court decisions shouldn’t be based on religious preference, or even on religious arguments. The Ten Commandments are reserved for houses of worship; the laws of the land are, or should be, secular. Still, I’m inclined, in my own way, to agree with Scalia’s idea about diversity. My suggestion is that the next Supreme Court Justice be a declared atheist.

Scalia would scream, but he was the one who said the Supreme Court should represent more than Ivy League Catholics or Jews. So, Krauss says, diversify logically:

Atheists are a significantly underrepresented minority in government. According to recent findings from the Pew Research Center, about twenty-three per cent of American adults declare that they have no religious affiliation – which is two percentage points more than the number who declares themselves Catholic. Three per cent of Americans say that they are atheists, which means that there are more atheists than Jews in the United States. An additional four per cent declare themselves agnostic; as George Smith noted in his classic book “Atheism: The Case against God,” agnostics are, for practical purposes, atheists, since they cannot declare that they believe in a divine creator.

The numbers are there and an atheist Justice would be quite useful these days:

In controversial cases about same-sex marriage, say, or access to abortion or birth control, he or she would be less likely to get mired in religion-based moral quandaries. Scalia himself often got sidetracked in this way: he framed his objections to laws protecting LGBT rights in a moral, rather than a legal-rights, framework. In his dissent, in 2003, in Lawrence v. Texas – a case that challenged a Texas law criminalizing gay sex – Scalia wrote that those who wanted to limit the rights of gay people to be teachers or scoutmasters were merely “protecting themselves and their families from a lifestyle they believe to be immoral and destructive.” To him, religion-based moral objections seemed to deserve more weight than either factual considerations (homosexuality is not destructive) or rights-based concerns (gay people’s rights must be protected). Indeed, Scalia’s meditation on the Court’s lack of religious diversity was part of a larger argument that the Court’s decision on same-sex marriage did not reflect prevailing religious and moral values. An atheist Justice, by contrast, would have different intellectual habits. I suspect that he or she would be more likely to focus on reason and empirical evidence.

That would be really useful these days. Reason and empirical evidence are in short supply. People are just making stuff up – new rules that they say are old rules, always followed, even if there no empirical evidence for any such thing. They’ve developed a whole new Supreme Court Replacement Theory. They made it up. They do need a stone-cold atheist on the Supreme Court. Someone has to say stop making things up. Leave that sort of thing to Harper Lee and Umberto Eco. They were better at it, even if they can’t be replaced.