Be wary of those advising you to bring a butter knife to a gun fight

In Thursday’s New York Times, Adam Liptak highlighted an irony of President Trump’s tirades against the federal judiciary: that the rulings thwarting some of his higher-profile executive orders–the travel ban and the threat to strip “sanctuary cities” of federal funding, more specifically–stem from precedents established by conservative Supreme Court justices and litigation strategies pursued by conservative actors (for the latter, also see here). In particular, Liptak focused on two practices used to block actions taken under Presidents Obama and Trump: (1) bringing constitutional challenges against policies that threaten states with financial harm if they do not carry out federal policy, and (2) asking individual district court judges to grant injunctions with nationwide effect. (I’d also credit the conservatives on the Rehnquist Court for their support of an “anti-commandeering” principle limiting the ability of the federal government to compel state and local actors to carry out federal policy.) The bulk of Liptak’s analysis proceeded to explain why liberals should be wary of the prospect of conservatives’ litigation tools being used to serve liberal ends. But the implications of this warning for how Democrats should respond to Trump policy initiatives–though the term “initiatives” suggests something more organized than this bunch of ill-conceived and amateurishly constructed executive orders–are murky at best, and Democrats would be foolish to follow the article’s implied advice.

Liptak is correct to note that both liberals and conservatives demonstrate Gumby-esque flexibility when it comes to their commitment to federalism and willingness to pursue short-term political victories at the expense of longer-term adherence to constitutional principle. But apparently, only liberals should eschew such flexibility, according to the two quoted law professors, both of whom do possess track records of commitment to federalism:

Josh Blackman, a law professor at South Texas College of Law, said Democratic officials should strive for more consistency, even if only as a matter of self-interest. “Whatever California can do to resist immigration law,” Professor Blackman said, “Texas can do to resist environmental laws.”

Ilya Somin, a law professor at George Mason University, made a similar point from the opposite direction about the decision on Tuesday to block efforts to withhold federal money from sanctuary cities.

“Some conservative Republicans may not like the outcome of this specific case,” he wrote on The Volokh Conspiracy, a legal blog. “But they will have reason to celebrate it the next time a liberal Democratic president tries a similar move.”

The implication of these recommendations is that liberals should accept a paradigm in which states’ rights govern when Democrats control Washington, but not when Republicans do. But how does that translate into action?  How should Democrats respond to Trump executive orders they consider objectionable (pardon the redundancy)? Let’s consider the available alternatives to the status quo approach:

  • Liberals should refrain from raising states’ rights-based legal objections in court. The implication is that staying one’s hand today will preserve the ability tomorrow to defend strong national authority exercised on behalf of liberal causes (e.g., environmental protection, LGBT rights). But the practices liberals are being advised to eschew (making states’-rights arguments, seeking injunctions from judges based in favorable terrain) already exist. If liberals take this advice, these practices will still be available the next time a liberal administration needs to be thwarted. Barring a Supreme Court willing to revisit Rehnquist Court views on federalism–and no one should hold their breath waiting for the arrival of that Court–the precedents relied on by conservative litigators will remain available for deployment. A foolish consistency might not be the “hobgoblin of little minds” that Emerson claimed it is, but it would hardly guarantee future rulings favoring national authority dedicated to liberal ends. So if you’re stuck with conservative-preferred doctrine either way, why deny yourself the opportunity to use it to attain liberal-preferred results?
  • Liberals could exclusively raise legal claims not rooted in federalism. One of the advantages of litigating against a post-policy administration disinterested in legal niceties is that a wide range of legal claims opens itself up to you. Why not base one’s legal attack on claims rooted in equal protection or the First Amendment, as we saw in the response to the travel ban, or due process, as we’re seeing in the challenge to Trump’s attack on sanctuary cities? That way, you avoid lending support to doctrinal concepts you’d like to see discarded eventually, while backing concepts that you’d like to see fortified. Fortunately for liberal litigators, rights-based claims and federalism-based claims are not mutually exclusive logically or strategically. There’s no reason not to raise both and let judges decide which ones are more persuasive. Raising both sets also improves one’s chances of winning among a more robust set of judges; conservative judges who might be wary of expansive readings of equal protection, for example, could choose instead to rely on anti-commandeering arguments.

In short, we’re living in a legal regime that conservatives have played a crucial role in shaping. It would be folly for liberals to refuse to use the doctrines of that regime when they happen to work to liberals’ advantage, given the long odds that liberals will be able to alter that regime anytime soon.

Plagiarism and the Gorsuch nomination

I harbor no illusions, especially with the filibuster eliminated for Supreme Court nominations, that Judge Neil Gorsuch’s nomination will be derailed by claims, presented in Politico and Buzzfeed on Tuesday, that the nominee had used language from source material without attribution in his book and a 2000 law review article. (Here are the passages in dispute, so you can examine them side-by-side and draw your own conclusions about whether an offense was committed, and if so, how severe it was. Noah Feldman, for one, considers the plagiarism “embarrassing,” but not disqualifying.) Senate Republicans have made it this far in their effort to fence the stolen ninth seat on the Court, and it’s hard to envision that there will be sufficient defections for anything shy of confessing to being a devout Muslim or having performed an abortion. But here’s why the claims of plagiarism should matter.

When I talk to my students on the first day of class about academic honesty, I start by discussing Pete Rose’s ban from Major League Baseball (after telling less sports-literate students who Rose is). Even before the emergence of on-line gambling and daily fantasy sports, betting on major-league baseball games (as opposed to running bookmaking operations) was not considered a major criminal offense in American society writ large. But within the milieu of professional baseball, it has been considered a capital offense since 1927, when Major League Baseball adopted a stringent ban in response to the Black Sox scandal that tainted the 1919 World Series. Allowing players or coaches to wager on games in which they could directly influence the outcome (or even in games in which they couldn’t) would directly damage the integrity of the enterprise. The game could not survive without fans being able to trust that participants had no pecuniary interest in failing to try to win.

Similarly, the integrity of the academic enterprise requires that readers be informed about which words and ideas are the writer’s, and which ones come from outside sources. Disclosure enables readers to check that the author has represented his or her source’s ideas and words accurately, and to consider the source’s credibility when assessing the citing author’s work. The academic enterprise suffers irreparable harm when readers can’t assume a certain level of honesty on the part of authors.

The defenses of Gorsuch don’t hold up terribly well. Among the defenders presented by the White House were his mentor at Oxford (John Finnis), an external member of Gorsuch’s dissertation committee (John Keown), and the general editor of Gorsuch’s book (Robert George). When they minimize what Gorsuch did, these scholars are hardly arguing against interest, either ideological (a shared interest in natural law and desire to see a committed social conservative on the Supreme Court) or professional (not catching plagiarism is embarrassing for scholars reviewing others’ research, even when the misused material is unlikely to register as suspicious). More to the point, it’s hard to envision these scholars describing misappropriation by their undergraduates in the words George used to defend Gorsuch:

[Gorsuch] “did not attempt to steal other people’s intellectual property or pass off ideas or arguments taken from other writers as his own….In no case did he seek credit for insights or analysis that had been purloined. In short, not only is there no fire, there isn’t even any smoke,”

Surely George must know that standard definitions of plagiarism are wider ranging than what he offers as the definition he uses to clear Gorsuch. The Council of Writing Program Administrators defines plagiarism as resulting “when a writer deliberately uses someone else’s language, ideas, or other original (not common-knowledge) material without acknowledg­ing its source.” And the Modern Language Association defines plagiarism as follows:

“Using another person’s ideas or expressions in your writing without acknowledging the source constitutes plagiarism…. [T]o plagiarize is to give the impression that you wrote or thought something that you in fact borrowed from someone, and to do so is a violation of professional ethics…. Forms of plagiarism include the failure to give appropriate acknowledgment when repeating another’s wording or particularly apt phrase, paraphrasing another’s argument, and presenting another’s line of thinking”

People can reasonably differ on what consequences should arise from Gorsuch’s actions, but if the writings cited in the Politico don’t constitute plagiarism, then lazy or dishonest students across the country will have cause to breathe easier.

What about the defense offered by Abigail Lawlis Kuzma, author of the Indiana Law Journal article at the heart of the controversy? She claims that the copied passages at issue were “factual, not analytical in nature,” and that paraphrasing would have been “awkward and difficult.” But even if you accept the claim that rephrasing a highly technical passage would have been awkward–and there’s evidence that more lay-friendly paraphrases were possible)–why not simply quote the material directly and attribute it to Kuzma, along with the primary sources she used? Instead, we see material used word-for-word or close to it, along with ellipses in the same places in both works. I punish that kind of sloppiness when my undergraduates commit it; shouldn’t the standards be higher for someone aspiring to serve on the nation’s highest court? It appears that they won’t be, but that’s no reason to shrink from a defense of those standards.

Neil Gorsuch and whether the personal is jurisprudential

Have LGBT advocacy groups such as Lambda Legal and the Human Rights Commission been jumping the gun in their opposition to Judge Neil Gorsuch’s nomination to the Supreme Court, because Gorsuch has acted in ways that suggest he does not share Justice Antonin Scalia’s hostility to the LGBT community. Consider the evidence:

  1. Having hired two openly gay clerks during his tenure on the Tenth Circuit Court of Appeals.
  2. Being supportive of one of those clerks when he revealed his sexual orientation to the judge.
  3. Living in a liberal Colorado community and attending a gay-friendly Episcopal church.
  4. Displaying no indication, in his record on the Tenth Circuit, of overt hostility to LGBT rights.

There is much to be said for a nominee who is not prone to ranting about the “homosexual agenda,” and who has numerous clerks willing to speak to his independence and open-mindedness. Those prone to optimism might look to these data points as support for hope that on LGBT issues, Gorsuch will bear greater resemblance to Justice Anthony Kennedy, for whom Gorsuch clerked, than Justice Scalia, whose brand of originalism Gorsuch subscribes to. (Judicial politics scholars offer contrasting predictions of where a Justice Gorsuch would fall on the ideological spectrum.) But even if we accept these supportive characterizations of Judge Gorsuch, there are still compelling reasons for LGBT advocacy groups to be concerned.

  • The test of one’s commitment to rights is not whether you’d recognize those rights when claimed by people close to you. It’s whether you’d extend those rights to people you’ve never met and will never meet. It speaks well of Gorsuch that he has been supportive of gay work associates, and that he and his family did not treat a church’s LGBT-friendliness as a deal-breaker. But if his jurisprudence devalues marriages and enables states to treat LGBT individuals as second-class citizens, these examples of personal goodwill will offer little consolation to disfavored people who lack any personal tie to Gorsuch. (Remember, too, that Mary Cheney’s sexual orientation had no apparent impact on the gay-friendliness of George W. Bush’s policy agenda.)
  • It would be trivially easy for a Justice Gorsuch to say that while he personally favors LGBT rights, and would support them were he a legislator, his role on the bench is to interpret the law to the best of his ability, and not to enact his personal policy preferences. It’s a claim that plays well both in the Senate Judiciary Committee hearing room and the court of public opinion. Even legal realists who claim that this formalism is impossible to achieve in practice do not oppose it from a normative perspective. So even if the claims presented in the Times article reflect a lack of hostility to LGBT rights, the only inference one can clearly draw is that Gorsuch’s opinions will probably be devoid of Scalia-esque rhetorical salvos against gay rights and their advocates.
  • Gorsuch was part of the Tenth Circuit panel that held, in Hobby Lobby Stores v. Sebelius, that closely held for-profit corporations could legally claim, under the 1993 Religious Freedom Restoration Act, an exception from the Affordable Care Act’s requirement that their health insurance plans include contraception coverage. It hardly requires a great leap of logic to think that the vision of religious liberty espoused in Hobby Lobby would extend to cover legislation allowing for a religion-based exception to laws banning discrimination based on sexual orientation.

In short, those concerned about LGBT rights should look not to Gorsuch’s heart, but to his jurisprudential approach. That approach should give advocates cause for concern, even as they consider the poor odds that the current president and Senate majority propose a nominee whom LGBT advocates would prefer.

Summarizing (others’) unsolicited advice on Judge Gorsuch, Part II

(Part I can be found here.)

Radley Balko (Washington Post): Democrats have compelling reasons to be angry about Garland’s treatment, but they could do far worse than Gorsuch, whose unwillingness to defer to agency interpretations of federal statutes suggests that he’ll resist Trump’s power grabs. If you think Trump represents a singular threat to democracy, then you’d be foolish to reject someone, however conservative, who has a track record of resisting executive overreach. And supporting Gorsuch would make all-out resistance to a second Trump nomination more credible; moderates, in Balko’s view, won’t respond well to a blockade. If you want to send Trump a message, Attorney General nominee Jeff Sessions would be a more appropriate target.

My assessment: Gorsuch has indeed displayed libertarian leanings on some issues (e.g., Fourth Amendment) that not only would make Democrats happy, but would make them happier than Garland would have. But the problem with counting on Gorsuch to push back against executive power is that the cases cited as evidence come predominantly from the Obama presidency. Will Gorsuch be equally willing to push back against Trump’s assertions of executive authority, or to refuse to defer to statutory interpretation performed by Trump’s appointees?  Although I’d agree with Balko that Sessions merits opprobrium more than does Gorsuch, it’s not as though Democrats have to choose between obstructing Gorsuch and voting against Sessions; there are plenty of no votes to go around.

Noah Feldman (Bloomberg): Opposing Gorsuch would be foolish. He is as qualified a nominee as you’re going to find, and while he’s conservative, he’s not a bomb-thrower. Indeed, his lack of ideological rigidity suggests that he might be capable of moving toward the center, as did Justice Kennedy, for whom Gorsuch clerked. “[I]t would be hard for Gorsuch to call for, say, overturning Roe v. Wade while sitting with his old boss, who rejected that path in the Casey v. Planned Parenthood case.” A scorched-earth campaign portraying Gorsuch as an extremist, however, might push him further right.

My assessment: An opposition campaign that took liberties with its description of Gorsuch’s jurisprudence, or that searched his personal life for molehills to blow up into mountains, could indeed embitter the nominee. And Gorsuch’s clerks, of varying ideological leanings, have spoken of his open-mindedness. But Senate Democrats could make clear that their beef is not with Gorsuch personally, but with Mitch McConnell and Donald Trump. Given his prior outspokenness about how both Garland and John Roberts had been treated by the Senate during their appointments to the Courts of Appeals, I suspect that Gorsuch will recognize that the battle is not about him per se, but instead concerns primarily the ongoing partisan struggle over control of the one branch of the national government that is expected to stay clear of partisanship.


Summarizing (others’) unsolicited advice on Judge Gorsuch, Part I

So it’s been two days since Judge Neil Gorsuch was appointed to inherit Mitch McConnell’s stolen property, i.e., the ninth seat on the Supreme Court. Apparently, I was not alone in offering unsolicited strategic advice to Senate Democrats.  Here are some examples from more visible analysts, with paraphrases of their advice followed by my assessments. (I’ve broken the original post into smaller, more digestible chunks.)

Steven Pearlstein (Washington Monthly): Obstructing Gorsuch is bad because it undercuts the Democrats’ image as the party that actually cares about governance, as well the party’s claim that the Supreme Court needs nine justices to function effectively. It also will induce wavering Republicans to side with their party in the face of partisan obstruction, instead of defecting from Team Trump on issues where Democrats might be able to garner their support. And even if a blockage forced Gorsuch’s withdrawal, the result would be a nominee whom Democrats would like much less. Rather than obstruct, Democrats should condition their shelving the filibuster on the adoption of a resolution that would bar Trump from filling any vacancies that might occur during the last year of his term. Republicans could demonstrate that their justification for blocking Merrick Garland wasn’t spurious and self-serving, and Democrats could still voice their opposition to Gorsuch by voting against the nomination.

My assessment:

  1. The argument about preserving the brand has some merit, but the party has a greater imperative right now when it comes to brand association. The Democratic Party has the image of a group that brings textbooks to a gunfight and can’t figure out why the folks with the guns keep winning. The party base is demanding payback for what happened to Garland, and given that priority, it will not treat full-tilt opposition to Gorsuch as indicative of the party’s lack of interest in governance.
  2. Treating Gorsuch as business as usual will earn Senate Democrats approximately zero votes on Obamacare, environmental protection, or any other policy priority. Republican senators have more much to fear from primary challenges, especially given their popularity ratings relative to Trump’s, than they do from failing to extend an olive branch to their Democratic colleagues.
  3. As for the proposed alternative to the filibuster, why would the Senate of 2019 feel compelled to honor a resolution passed in 2017, especially if the Republican majority were to grow after the 2018 election? The Senate could simply pass a new resolution, and Democrats would have no leverage to stop it. And if Senate Democrats think that Mitch McConnell and Orrin Hatch behaved disreputably in stonewalling the Garland nomination, why would they trust them to uphold the proposed deal?

Garrett Epps (The Atlantic): He’s agnostic on whether Democrats should filibuster, but he does think their (and Republicans’) questioning during the hearings should center on Gorsuch’s commitment to democracy in the face of the Trump administration’s attacks on it. Topics to be featured would include due process protections for immigrants; protections for free speech and free press in times of crisis; restraints on executive power; and the dividing line between permissible voting regulations and voter suppression.

My assessment: Whether or not Democrats filibuster, they will not possess the power to prevent hearings. So why not devote the hearings to something meaningful, given the present climate? The lines of inquiry posed by Epps will provide greater insight into Gorsuch’s outlook than would the tired two-step over abortion,  where senators can’t ask directly about Roe  and nominees won’t answer forthrightly. (It’s not as if we don’t already know Gorsuch’s position on Roe.) They also allow for senators to move beyond the cliched and not-terribly-informative debates over judicial activism and judicial restraint. Most important, they enable a discussion that properly places legal questions in a political context, but without defining that context predominantly as partisan.


How Senate Democrats Should Treat Garland’s Seat

For the past week, public attention has been focused predominantly on President Trump’s attack on Obama administration policies, longstanding political norms, and all actors who have demonstrated a desire to push back against “alternative facts,” a term that will supplant “enhanced interrogation techniques” as the most obscene euphemism in 21st-century American politics. But on Tuesday evening, the Tweeter-in-Chief will be announcing an appointment that, in all likelihood, will outlast his administration: the prospective ninth justice on the Supreme Court. Given the stakes, as well as the circumstances that have caused the seat to remain vacant for nearly a year after Justice Antonin Scalia’s death, the strategy deployed by Senate Democrats will be scrutinized especially closely.

By most accounts, the nominee will be either Judge Neil Gorsuch, of the Tenth Circuit Court of Appeals, or Judge Thomas Hardiman of the Third Circuit. (The invaluable SCOTUSBlog has detailed analyses of Gorsuch and Hardiman, with respect to both their biographies and their track records on the bench.) Both are young (49 and 51, respectively), have solid conservative records, and are highly regarded by their peers. Gorsuch draws comparisons to Scalia because of their shared commitment to originalism and reputation for clear and vivid writing, while SCOTUSBlog’s Amy Howe expects Hardiman’s jurisprudence to resemble Justice Samuel Alito’s, as does a recent study attempting to estimate the “Scalia-ness” of potential Trump nominees. (That study estimated, based on three quantitative indicators measuring potential nominees’ similarity to Scalia in interpretive methodology and propensity to write separately, that both Gorsuch and the Eleventh Circuit’s William Pryor more closely resemble Scalia than does Hardiman.) Competing analyses, however, place Hardiman in between Justice Anthony Kennedy and Chief Justice John Roberts with respect to ideology.

These nominees are about as good as progressives could expect a Republican president to propose, given the presence of a Republican-majority Senate. Under normal circumstances, either nominee would be confirmed with minimal delay and half-hearted opposition. But under normal circumstances, there would be no vacancy for Trump to fill.

So how should Senate Democrats respond? Treating the nomination as business as usual would demonstrate that violating longstanding norms concerning Supreme Court nominations has no political consequences, and thus would legitimize the Republican obstruction of 2016. Moreover, it would demoralize the party’s base, which is spoiling for any opportunity to do unto Republicans what they had done to Obama over the previous six years. But successful obstruction of Gorsuch or Hardiman hardly guarantees that the next choice will be more acceptable, and unless you can credibly commit to obstruction of indefinite length, the Senate will probably end up confirming someone worse for you than the original nominee. (If you can make this commitment but fear the political repercussions, think about what constitutional law would have been had Robert Bork been seated instead of Anthony Kennedy.) Whichever strategic choice Senate Democrats make should keep the following principles in mind:

  • Dealing in good faith will get you nowhere. In this climate of hardened partisan polarization, one should not expect that cooperation will be reciprocated. There is no formal mechanism by which any bargain struck between the parties’ leaders could be maintained, and the threat of primary challengers, especially on the Republican side, offers a strong deterrent to compromise.
  • Don’t fear the nuclear option. According to CNN,

    Senate Democrats are weighing whether to avoid an all-out war to block President Donald Trump’s upcoming Supreme Court pick, instead considering delaying that battle for a future nomination that could shift the ideological balance of the court, sources say.

    Democrats privately discussed their tactics during a closed-door retreat in West Virginia last week. And a number of Democrats are trying to persuade liberal firebrands to essentially let Republicans confirm Trump’s pick after a vigorous confirmation process — since Trump is likely to name a conservative to replace the late conservative Justice Antonin Scalia.

    The reason for the tactic: Republicans are considering gutting the filibuster for Supreme Court nominees if Democrats stay largely united and block Trump’s first pick. By employing the so-called “nuclear option,” Senate Majority Leader Mitch McConnell could move to reduce the threshold for clearing a filibuster from 60 votes to 51 votes.

    The problem with this approach is that the Senate majority will eliminate the filibuster as soon as its deployment sufficiently frustrates their goals. Failure to obstruct the first nominee simply means that the filibuster will be eliminated for the next nominee for whom obstruction is threatened. Yes, there are some Republican senators who, out of commitment to the institution or fear of someday being in the minority, advocate the preservation of the filibuster. Whether their advocacy will persist in the face of relentless attack from the base, and especially the portion of the base that cares deeply about the Supreme Court, is an open question. Democrats should not assume that institutional loyalty will prevail over the need to avoid a primary challenge.

  • Don’t fixate on whether the nominee shifts the balance of power on the Court. There has been a temptation to minimize the significance of the current vacancy, since a conservative would be replacing another conservative. That temptation should be avoided. There’s no reason not to run up the score when it comes to staffing the Court with ideologically compatible justices. After all, Republicans would have been more sanguine about losing Scalia had they held a margin greater than 5-4 at the time of his death. And a nominee who doesn’t shift the Court’s center of gravity still has value in that the majority party can trade in a departing justice for a much younger model.
  • For goodness’ sake, how about some counter-messaging? In all likelihood, Senate Democrats are not going to be able to block the nomination. But if they’re fighting about the parameters of future nominations–and if they’re not, they really need to be–they need to stop ceding the intellectual high ground. Conservatives have beaten the drum for Scalia’s brand of originalism so effectively that large swathes of the public believe that channeling the framers represents the only legitimate form of constitutional interpretation. Why not take advantage of the hearings to build support for an alternative that’s conceptually sound and publicly appealing? It’s either that or search for gotchas in the nominee’s personal or professional background, and if gotchas didn’t keep Clarence Thomas off the Supreme Court, they’re not going to keep off Gorsuch or Hardiman either. The gotcha strategy also doesn’t help the party build a “brand name” that can help it win support for its future nominees; instead, it creates the impression that the party wielding it does so out of desperation because it cannot contend in the realm of ideas.

Democrats were unable to make electoral hay out of the unprecedented treatment of Judge Merrick Garland’s nomination, and they probably will have little success at using the upcoming hearings as a chance to get a second bite at that apple. But too many circumstances militate against treating the Republican nominee as if 2016 had never happened.


What Obama’s winter vacation plans should be

In case you doubted that Senate Republicans’ campaign of obstruction against Supreme Court nominee Merrick Garland has stunk of bad faith from the outset, recent statements from several high-ranking Senate Republicans should put your doubts to rest. The emerging plan seems to be not only to deny President Obama the opportunity to fill the ninth seat on the Court, but to obstruct anyone put forth by Hillary Clinton as well. We have been treated to fatuous rhetoric about how respect for democracy requires that the vacancy be filled by the new president, but now it seems that this principle, dubious as a matter of history or constitutional law, will evaporate in light of the likelihood of another Democratic president.

Here’s Ted Cruz on the subject:

“I think there will be plenty of time for debate [on whether to consider Clinton’s nominees]…. There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”

(It turns out that Breyer wasn’t quite as sanguine about the prospect of an eight-member Court as Cruz made him sound. Justices Sotomayor and Ginsburg are decidedly more hostile, and even Justice Thomas has indicated dissatisfaction with the status quo.)

Here’s John McCain promising to be “united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” He later tried to walk back that statement, claiming that he promised only to scrutinize her nominees closely rather than bar their consideration altogether, but you can decide whether that more charitable reinterpretation has more credibility than the initial statement.

And as if on cue, a number of legal commentators have rushed in to lend a patina of intellectual respectability to this shabby effort. There’s Cato’s Ilya Shapiro arguing at The Federalist that the Senate would be within its rights never to confirm another Supreme Court nominee, no matter the consequences to the judiciary. There’s Eric Segall making the case that an eight-member Court would be preferable to a nine-member Court, in that the former would have to achieve higher levels of consensus on controversial cases. And there’s Michael Stokes Paulsen writing at National Review about how shrinking the Court to six, either by legislation or Senate commitment to atrophy, would produce a Court less prone to judicial activism, or at least the bad kind that produces decisions liberals like, because two-thirds is greater than five-ninths.

Does anyone really believe that these arguments would have surfaced had a Republican presidential nominee been primed to assume the presidency? In that scenario, we’d be hearing about how elections have consequences, and how FDR demonstrated the evils of tinkering with the size of the Supreme Court for short-term partisan or ideological advantage. (It’s telling that the defenders of obstruction have to go back to the Reconstruction era to find examples of obvious manipulation.) Ultimately, though, it’s the senators, not the law professors, who whose views will prove more consequential for the Court’s fate. And we’ll have more clarity about their fate after next week’s election.

So President Obama’s winter break plans should be straightforward: Have a nominee lined up for every single federal judicial vacancy. If voters elect Clinton and a Democratic Senate majority–if we get the latter, we’ll almost certainly have gotten the former too–then he should spend the last two weeks of his presidency pushing nominees through. It’s not as though he’ll have much else to do, in all likelihood, and Clinton would get to conserve political capital for other battles she’ll be fighting. (If voters go in a different direction, then all bets are off, of course.)

Some possible objections:

  • What about Hillary Clinton? Won’t she feel miffed about being denied the opportunity to fill these seats, should she win election? This problem could be solved easily by Obama’s inviting Clinton to make the judicial selection process a joint effort.
  • Will nominee quality be compromised by such a rushed effort? There are compelling arguments that the vetting process has gone too far in the level of scrutiny to which potential nominees are subjected. But even if you think the level of scrutiny is appropriate, it’s hard to believe that the Obama administration doesn’t have a list of already-vetted candidates upon whom it could draw. The presence of such a list would be testament to the effects of years of obstruction for obstruction’s sake.
  • Won’t inter-party comity in the Senate be damaged by such hardball? (Long pause to let convulsive laughter subside…) In the short run, there could be damage to what’s left of comity. But in the long run, seeing evidence that obstructing moderate nominees has political costs might lead to a more cooperative Republican caucus.


So, President Obama, if you want one more legacy item (or two, if ISIS gets crushed before January 20, 2017), here’s your opportunity. At the risk of sounding cliched, don’t throw away your shot.

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