Balkinization: The Congress-centric Case Against Court-Packing

The Congress-centric Case Against Court-Packing

David Super

A large and increasing chorus of progressive activists, along with some prominent Democratic office-holders and candidates, have called for Democrats to add seats to the Supreme Court after a hypothetical Democratic takeover of the White House and the Senate. They argue that highly conservative Republican appointees have a majority on the Court only because Republicans have broken longstanding norms, particularly by denying a hearing to Judge Merrick Garland for purely partisan reasons. They believe that the norm against partisan manipulation of the Court’s size implicitly assumes that these other norms remain in force.

Even within its own terms, Court-packing only makes sense if the Democrats can maintain consistent control of at least one chamber of Congress or the White House. If Democrats gain control of Congress and the White House and pack the Court, Republicans will be eager to return the favor at the first opportunity. Democrats’ performances in elections over the past several decades do not inspire much confidence that they can make Court-packing stick.

Beyond the efficacy of Court-packing, however, these proposals make me deeply uncomfortable. I will leave to others the questions of what this would do to the credibility of the Court and to public confidence in the rule of law in this country generally. These are serious issues, ones that progressives hoping to harness the rule of law to restrain powerful moneyed interests would do well to consider. I, however, would like to focus on the consequences of such a move on Congress and on legislation important to the progressive cause.

Unless President Trump thrusts this country into a recession of staggering proportions, Democrats will remain far from the sixty votes required to surmount a Senate filibuster. Court-expanding legislation is not primarily fiscal so it cannot pass with 51 votes through reconciliation. Its enactment therefore depends on a hypothetical future Democratic Senate Majority Leader invoking the “nuclear option” to eliminate the filibuster against legislation.

This would be a serious mistake.

Although the legislative filibuster has frustrated some progressive ambitions, it is not nearly the obstacle that many imagine. Both a carbon tax and universal eligibility for Medicare could easily be enacted through existing reconciliation procedures, circumventing the filibuster. So could a new entitlement to child care subsidies.

Progressives also underestimate how many important social advances the filibuster has preserved. Had Republicans not been constrained by reconciliation rules, they surely could have found ways to buy off another senator and repeal the Affordable Care Act. The threat of a filibuster has prevented Republicans from defunding the Legal Services Corporation and numerous environmental and social services programs too obscure for a defunding to attract media attention. With the parties’ bases becoming increasingly ideologically monolithic, Republicans could defund a great many programs without alienating many voters or contributors even if their actions were widely publicized. Tearing down programs is much faster and easier than building them up. And are we really confident that Republicans could not keep their party together to enact what they would call “common sense” curtailments of civil rights legislation?

Proponents of eliminating the legislative filibuster also likely overestimate the fraction of the time the filibuster will be serving a Republican minority rather than a Democratic one. Understanding how likely Democrats are to control the Senate is easier if one focuses on the states most likely to make the difference. If Democrats win both Senate seats in the twenty-five most-Democratic states and win the presidency, they should control the Senate. This can be termed a “par” result. For each seat in those states that they lose – or if they lose the White House – they need to pick up a seat in one of the twenty-five most-Republican states.

According to the Gallop Organization, the reddest of those twenty-five most-Democratic states are Iowa, Nevada, New Hampshire, Wisconsin, and North Carolina. The five bluest among the twenty-five most-Republican states are Georgia, Florida, Ohio, Kentucky, and Indiana.

At present, Democrats hold five seats in the twenty-five most-Republican states: one each in Ohio, West Virginia, Arizona, Montana, and Alabama. The Alabama seat probably disappears after the next election; the Ohio, West Virginia, and Montana seats probably disappear when the current holders retire, if not sooner. The other seat in Arizona and perhaps the seats in Florida are the only truly plausible Democratic pick-ups in these redder states, absent the accident of a monstrous Republican nominee.

Republicans, however, hold eight Senate seats in the twenty-five most-Democratic states: both seats in Iowa and North Carolina plus one each in Wisconsin, Colorado, Pennsylvania, and Maine. None of these seats is as generically vulnerable as several of the Democratic ones mentioned above: the incumbents (or their partisan successors) could lose any of them, but none exhibits clear Democratic structural advantages or is even dependent on the incumbent continuing to run. And Republicans have recently run highly competitive races in several other Democratic states, often losing because of bad candidates.

In sum, a progressive strategy that assumes Democrats will control the Senate most of the time probably does not make much sense. Democrats will want to be filibustering Republican bills at least as often as they will be frustrated by Republican filibusters of their own proposals.

Some advocates of court-packing insist that Democrats might as well eliminate the filibuster on legislation because Republicans are likely to do so themselves anyway. This is very likely wrong.

Most obviously, if Senate Republicans wanted to eliminate the filibuster on legislation, they could do so right now. Yet despite President Trump’s forceful demands, they have not. It is important to understand why not. In essence, eliminating the filibuster would dramatically diminish the power, prestige, and fund-raising ability of minority-party senators, consigning them to the same role as minority-party representatives.

And being a member in the minority party in the House is a pretty miserable job. Except on those relatively rare occasions when the majority party fractures, minority members’ votes are largely irrelevant. Minority members cannot call hearings and sometimes do not even get to select a single witness at hearings called by the majority. Apart from the occasional motion to recommit or motion to instruct conferees, they have no influence over the agenda on the House floor. Special interests wanting favors in appropriations, tax, or other legislation have little reason to donate to minority representatives unless a reversal of partisan control appears imminent. Thirty Republican senators served in the minority there; many of the rest served as minority representatives. The prospect of being minority senators is real to them, and they want to keep the experience from being too demoralizing.

By contrast, eliminating the filibuster against judicial nominations enhanced senators’ power to win confirmation of their political allies when their party controls the White House. It reduced the political influence of minority senators in only one small aspect of their work. Former Majority Leader Harry Reid acted sensibly to remove the filibuster against lower-court judges; without that action, very few of President Obama’s nominees would have taken their seats. Republicans already had used the threat of the nuclear option to win confirmation of many of President George W. Bush’s selection and would not have hesitated to invoke it once Democrats tried to filibuster President Trump’s nominees. Indeed, Senator Reid might have been well-advised to do as Senator McConnell just did: to limit debate on such nominees to two hours each.

Of course, if Democrats eliminate the legislative filibuster, Republicans would have no reason to restore it. But their own interests do not support its elimination in the first instance.

Advocates of Court-packing implicitly maintain that the Supreme Court is the most important policy-making institution in the country and that public policy is dominated by its pronouncements. Without a doubt, the Court is indeed extremely important. But, as Bill Eskridge and John Ferejohn have reminded us, we increasingly live in a Republic of Statutes. The legislative filibuster is crucial to preserving that republic.

Posted 9:46 PM by David Super [link]