Thursday, February 18, 2016

The Matthew Stephenson Moment

Richard Primus

        There’s logic in expecting that cooler heads will prevail and the Senate will later this year confirm a successor to Justice Scalia.  There’s also logic in expecting that the Senate will refuse to confirm a successor.  If the Senate refuses, there’s logic in expecting that the Senate will confirm a successor early next year.  But there are also foreseeable scenarios in which the Senate continues to refuse even after the election.  Suppose that Hillary Clinton is elected President and the Senate remains majority-Republican.  All of the Senate’s real reasons for blocking a nomination in 2016 will still be in force in 2017: the ideological balance of the Supreme Court is at stake, and a nontrivial constituency among the GOP’s voters will be inclined to punish any Senator who acquiesces to an unwelcome appointed.  Indeed, voting to confirm might be more dangerous for a Republican senator in 2017 than in 2016.  The threat, after all, comes from voters who are part of the party’s base, not from swing voters.  By the time of a confirmation vote in 2016, the senatorial primaries will be finished, and the voters to worry about will be in the political center.  A 2017 confirmation vote would come just as potential primary challengers are building support, and it is in the primaries where the danger lies.  To be sure, staggered elections in the Senate mean that only some Republican senators will be facing a new primary election cycle, and maybe a sufficient number of the others would decide, after a Democrat won the Presidency, that the time had come to go along.  But given the steady deterioration of interparty cooperation in recent years, it isn’t hard to imagine people digging in, either.

            If the conflict over the Supreme Court vacancy became protracted in this way, the big danger would not be the Court’s lack of a ninth member.  It’s better to have nine Justices than eight, but the Court and the country could survive for a while with only eight Justices—or even seven or six or five, if it came to that.  Uncertainty about the future of the law and nonuniformity about the law in the present would both have costs, but sustainable ones.  The big danger would be something else—the near-certain reality that the stalemate would not remain stable.  It would escalate.

            The story of the collapse of a functional confirmation process has, after all, been a story of serial escalations, with each side deciding to de-emphasize or disregard conventions that once underwrote a shared understanding of the boundaries of the game.  The Constitution itself says relatively little about the process, and the courts have not policed it and probably can’t.  So things can only move along if both parties exercise self-restraint, rather than trying to push more and more aggressively for their own advantage.  We haven’t seen that self-restraint lately.  Instead, we’ve seen, say, Senatorial refusal to confirm perfectly mainstream and honorable people as judges, the elimination of the filibuster, and so forth.  Mark Tushnet might describe the dynamic in terms of “constitutional hardball”—with a more optimistic lens, David Pozen might speak of “countermeasures.”  But either way, it should be clear that each escalation risks provoking further escalations, such that it is dangerously naïve to think that one has the power to end the game with a winning move. 

            What might a next escalation look like, if we find ourselves a year from now with a continued refusal by the Senate to confirm a Presidential nominee?  There’s no way to know for sure.  One of the dangerous things about escalating conflicts is that the menu of possible moves is not set in advance, and people might wind up doing something both unexpected and unexpectedly damaging.  But here is one possibility—offered both for its own value and as illustrative of what sorts of things might lie down this road, even if it isn’t this particular thing.

            Three years ago, Matthew Stephenson published an article arguing that the prevailing understanding on which a Presidential appointee to a position requiring Senate confirmation is confirmed only upon an affirmative vote of the Senate is itself merely a convention.  As Stephenson explains, the text of Article II does not say whether the Senate’s consent is to be signaled only by an affirmative vote or whether the Senate can be deemed to have consented simply by remaining silent for a period of time.  That silence indicates consent is, of course, a maxim in some areas of the law.  And there is logic to thinking that rule would make sense here.  Senate confirmation is an important check on Presidential power, because it enables the Senate to stop the President from naming rogues or incompetent cronies to positions of power.  But that doesn’t mean that no appointee can take office without an affirmative vote.  The check would still operate if the President said “I’m nominating Jessica Jonson—let me know if you have a problem with that.”  If the nominee is objectionable, the thinking runs, the Senate will say so.  If the Senate doesn’t bother to say anything after some reasonable time has elapsed, it means that the Senate has no objection.

            If we can inter the convention by which Presidential appointees get prompt hearings, and the convention by which competent appointees get confirmed even if their politics are not to the Senate’s liking, and the convention by which appointments are not held hostage to policy fights having nothing to do with the particular appointment, and the convention by which the Senate majority permits a sizeable Senate minority to have a veto, might it be naïve to think that the convention whereby the President waits for affirmative approval from the Senate before deeming an appointee confirmed is not also subject to elimination when the stakes get high enough?

            It’s hard to foresee what might happen if a President said “From now on, I’m going to deem my nominees appointed unless they are affirmative rejected by the Senate within ninety days.”  It might not be pretty.  And maybe we will never get that far.  But whether it’s that escalation or a different one, the important point is that escalations in the separation-of-powers game are likely to produce further escalations, especially when the stakes are high and politically salient, and especially in a particular domain—judicial confirmations—where escalation responding to escalation is already the established dynamic.  All of which raises the premium on getting things resolved before the stakes are raised yet again.

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