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.