Gregory Elinson
Hours after the Supreme Court announced Friday night that Justice Ruth Bader Ginsburg had died, Senate Majority Leader Mitch McConnell (R-KY) promised that President Donald Trump’s nominee to fill her seat would be assured a floor vote. But earlier that same Friday, Republican Senator Lisa Murkowski (R-AK) told reporters: “I would not vote to confirm a Supreme Court nominee…50-some days away from an election.” At least one other Senate Republican—Susan Collins (R-ME)—has since said there should be no vote on Ginsburg’s replacement before the presidential election, while Mitt Romney (R-UT) remains non-committal.
All of this jockeying doesn’t quite reflect how we tend to think partisanship should work in today’s polarized environment. The story we usually tell is that Democrats and Republicans in Congress march in lockstep against each other. But that’s not always—or even often—how our system works. The fight over who will get to name Ginsburg’s replacement is just the latest battle to divide members of the same party. For citizens and lawyers, these divisions have important stakes for how the Constitution works in practice. And it should point our collective attention to what is often the exclusive province of political scientists (but shouldn’t be): the financial and electoral incentives that senators who share the same party affiliation have to work together, as well as the rules and procedures that shape their collective and coordinated action.
Checks and Balances
We usually worry that the checks and balances at the core of our constitutional system are rendered toothless when the same party controls both Congress and the White House. The thinking goes that Congress will just rubber stamp the president’s agenda. But that turns out to be wrong if the party in control of the legislative branch can’t hold together. When presidents face a friendly—but disorganized—Congress, they may have far less power than we sometimes fear to alter the status quo. If the party in power (and the interests that constitute it) are happy to keep things as they are, this isn’t such a loss. But if a president is seeking to implement an ambitious agenda, be it progressive or retrenching, he may be out of luck.
Recent history is a good guide. Consider, for example, that despite controlling both chambers of Congress and the White House, congressional Republicans repeatedly failed to make good on their campaign promise to roll back the Affordable Care Act. Why? They couldn’t agree on what would replace it. While members of the House Freedom Caucus and the Senate’s most conservative Republicans demanded wholesale repeal, members of the moderate Tuesday Group and centrists in the upper chamber insisted on a replacement that would keep their constituents’ coverage intact. Indeed, absent agreement on what would come after the ACA, Republicans ultimately found common ground on the one thing they knew had to go: the individual mandate.
By the same token, we often believe that checks and balances will function well when partisan control of Congress and the White House is split. We tell ourselves that dislike of the other party will be sufficient to motivate interbranch competition. Again, though, the picture changes when the party in control of Congress can’t hold together. If members of the majority party can’t reach accord, we shouldn’t be so sanguine they’ll muster the collective strength to stand up to the president. Consider that disagreements among Democrats delayed the House opening an impeachment inquiry against Trump for many months and limited the scope of the charges ultimately brought against him. The more that presidents can do to exploit these cracks, the more likely it is they’ll be able to get their way—even when facing an unfriendly Congress. In this sense, party fractures undermine the separation of powers by weakening the possibility that partisan animosity will do what institutional loyalty typically doesn’t.
Party Cohesion Matters
All of this means that the separation of powers turns on how well parties stick together. And that depends (1) on how well party leaders use their tools of office, and (2) on a number of institutional and electoral incentives that drive party cohesion.
Cameral and Caucus-Based Rules and Norms
To begin, both House and Senate leaders play a key role in determining what goes on their respective chambers’ agenda. To do this, they employ a variety of parliamentary tools: moving bills off the legislative calendar, recognizing speakers, and deciding what kinds of amendments can be considered—to name only a few. Majority party leaders often use their control of the legislative agenda to block issues that divide the party from reaching the floor for debate, let alone a controversial vote. And within both parties, leaders rely on a range of procedures to minimize the appearance, if not the reality, of party conflict. Think here of the Republicans’ Hastert Rule and the Democrats’ Steering and Policy Committee, both of which are used to sort out factional disagreements and to avoid public displays of disunity.
As lawyers, we don’t usually think these tools have much constitutional significance. But as the fight over Ginsburg’s replacement may well show, that’s a mistake. In fact, these cameral rules and party procedures matter a great deal for how the separation of powers actually works.
Institutional and Electoral Incentives
Next up are an array of institutional and electoral incentives that shape party cohesion, or its absence. Here, the media matters. Particularly on the Republican side of the aisle, an array of evidence suggests that officeholders are increasingly “intertwined” with conservative media outlets. As political scientists Paul Pierson and Eric Schickler observe, these relationships are characterized by “increasingly open coordination and exchange of personnel.”
So does money, although its influence is less clear. On the one hand, party loyalty is often rewarded financially. McConnell, for instance, is a prodigious fundraiser, helping to raise over $117 million for the Senate Leadership Fund. On the other, the current campaign finance regime privileges individual candidates over party structures. This means that rebel senators can potentially offset the costs of their disloyalty by cultivating new sources of cash. Of course, the question is whether some of the most prominent ideologically motivated donors—Sheldon Adelson, for example—are willing to open their wallets for prominent dissidents.
Finally, there are electoral calculations. Particularly for vulnerable incumbents, there are no costless options. Should they tack to the base by demonstrating their party bona fides, they risk alienating the persuadable voters in their states. However few truly “swing” voters remain, it is clear from the 2016 presidential election that Obama-Trump voters arguably decided the election, and polling from states like Montana suggests that there may still be some split-ticket voters.
Should they make clear their independence from the party, they risk being tarred as insufficiently committed to the party’s cause—or, worse, flip-floppers. And there is at least some evidence that Republican voters, in particular, punish this kind of finger-in-the-wind politicking. Whatever strategy they choose, incumbents also have to find jobs if they lose. While party loyalty might lead to plumb lobbying or media posts, a reputation as a party maverick can also lead to a lasting legacy, as John McCain’s late career suggests.
So What Happens With Ginsburg’s Replacement?
With several senators already expressing discomfort with a swift vote on Ginsburg’s replacement, McConnell has little room to maneuver. After urging his colleagues to “keep their powder dry” for the fight ahead, he’s devoted much of his energy over the past few days to persuading Senate Republicans that a vote to confirm a Trump pick is justified. But whether or not McConnell will be able to deliver another Republican-appointed Justice to the Supreme Court remains in doubt. Will the Republican holdouts bend to the party whip? Will Senate Democrats use the chamber’s rules to deny the majority leader a quorum?
For potential Republican dissidents, the difficulty of their choice is evidenced by the divergent approaches of vulnerable incumbents Collins and Lindsay Graham (R-SC). While Collins followed Murkowski in saying there should be no vote on Ginsburg’s successor, Graham has taken the opposite tack.
These dynamics reveal a core truth about our constitutional system. Though we tend to think that party conflict rules the day, the future of our democracy and the stability of the Supreme Court may hang instead on how the GOP manages disagreement within its own ranks. We often think that McConnell’s success in confirming Trump’s judicial nominees reflects party strength. But if McConnell succeeds in wrangling a majority to confirm Ginsburg’s replacement, it’s worth asking instead why it is that the politics of judicial appointments may be so effective at bridging the party’s differences.
Gregory Elinson is a Climenko Fellow at Harvard Law School. You can reach him by e-mail at gelinson@law.harvard.edu.