Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Two Frames for Trump's Third Supreme Court Nomination
The heated question of the hour—Trump’s third Supreme Court nomination—is becoming a battle of framing. As so often happens, liberals are being drawn into the right’s frame (namely, “we must, as a common political community, examine the qualifications of the nominee, and then vote to confirm or deny the nominee based on the nominee’s record”). Within such a narrow frame, the battle is effectively lost before it's begun. The Republicans have a majority, 50+ of them almost always vote in lockstep for Trump/Federalist Society-backed judicial appointments, and they almost certainly will do so again now. More importantly, the critical proviso here—our common political community—has been brutally undermined by Trump’s attacks on minorities, urban areas, “anarchist jurisdictions,” and much more. Trump’s baseless questioning of the validity of election processes in blue states, as well as much other Trump rhetoric, is tantamount to a declaration of an enemy within. Despite all this, the GOP (as well as its friends in the academy and the press) want to normalize this as just another Supreme Court appointment.
What would be a more appropriate narrative than the right's "normalization" frame? I nominate "legitimation crisis:" a president so disdainful of the rule of law and democratic norms should not be able to appoint another justice. Does that seem arbitrary? Well, we now know the substance of the McConnell Rule was preemptive refusal to consider an eminently qualified nominee simply because he was nominated by a Democratic president. That was not a rational basis for refusing to consider Merrick Garland. By contrast, there is deeply disqualifying behavior in Trump’s record. In a recent, updated edition of his classic book on Carl Schmitt (The End of Law), William Scheuerman summarizes the situation well:
Like Schmitt, right-wing populism is hostile to the rule of law. When in power, populists remodel legal and constitutional practice according to the adage “for my friends everything, for my enemies, the law.” They transform law and courts into discriminatory weapons against their political “enemies,” while looking the other way when “friends” skirt the law’s boundaries. Populist leaders tout their fidelity to constitutionalism and the rule of law but in reality instrumentalize them as part of a struggle against the “other” (e.g., immigrants, racial minorities, the “liberal elite”).
Trump pays lip service to the rule of law, for example, while reducing it to a hyper-politicized version of authoritarian legalism, that is, “law and order,” with its main targets being black protestors (i.e., Black Lives Matter), Muslims, undocumented immigrants, refugees, and others whom Trump apparently considers a threat to “real Americans.” Repressively deploying the law whenever it suits his political agenda, he appears to treat his own endeavors—and those of his allies—as above the law. Flagrant corruption and conflicts of interest within his administration are pushed aside; Trump has actively resisted—and probably obstructed—efforts to investigate Russian involvement in the 2016 U.S. presidential election...and he views the U.S. Department of Justice and Attorney General as extensions of his own army of personal lawyers.
The analysis is apt, particularly as Trump's Attorney General has been called the "Carl Schmitt of our time." And if all this were not enough, we now have on the record Trump’s repeated, flagrant, reckless statements designed to sow doubt and distrust in electoral processes themselves during a pandemic. He has talked about throwing out ballots to ensure no transition of power. His allies in the GOP are already engaged in a scorched earth campaign to disenfranchise voters and slow down or discredit voting by mail. They have even called for criminal investigations into those who, like Michael Bloomberg, help voters navigate the minefield of practical and legal hurdles the GOP has energetically deployed against persons more likely than not to be Democrats.
And if this were not enough, Trump and his GOP allies have made it clear that they expect not merely lower courts the GOP controls, but also the Supreme Court itself, to be instrumentalities in a carefully planned effort to cast doubt on the voting results in key states (in case a majority of later-counted ballots appears to be cast for Biden). The goal appears to be creating enough delay and uncertainty so that GOP state legislatures send their own slates of electors to the electoral college in December. A fallback option is to rely on the GOP’s projected state delegation majority in the House of Representatives, if the election is still in doubt after January 3—where Wyoming’s 600,000 residents will have the same power as California’s 39 million. As Barton Gellman has reported:
If Trump sheds all restraint, and if his Republican allies play the parts he assigns them, he could obstruct the emergence of a legally unambiguous victory for Biden in the Electoral College and then in Congress. He could prevent the formation of consensus about whether there is any outcome at all. He could seize on that uncertainty to hold on to power. Trump’s state and national legal teams are already laying the groundwork for postelection maneuvers that would circumvent the results of the vote count in battleground states.
Anyone who can take in that reality, objectively reported, and still support President Trump’s current attempt to place a justice on the Supreme Court, lives in a different moral universe than I do. If Trump succeeds now, and Democrats were to later decide to expand SCOTUS with 3 or 6 more justices, what would be the objection? All that supports the current Republican effort to fill the Bader Ginsburg seat is the force of numbers: they have the presidency and a majority of the Senate. Whatever, then, a future Democratic President and Senate wishes to do to correct the resulting imbalance (a 67% Republican court in a country which is 25% registered Republican, and perhaps 44% or so supportive of Trump), is simply a matter of the numbers it has and the reprisals it might fear.
Therefore, even though I have written on the relationship between religious commitment and political and legal judgment, I don’t plan to discuss it in the context of this nomination. Like the Republicans who simply refused to consider any Obama nominee in 2016, the Democrats (with far better bases for doing so) should simply not consider any Trump nominee in 2020.
The current confirmation battle is not a question of qualifications. We are in an emergency. Normal debates and processes are suspended. Given the Supreme Court’s pivotal importance in so many election disputes (from Reynolds v. Sims to Bush v. Gore to Shelby County v. Holder), and Trump's unprecedented attacks on core democratic processes, it’s about whether you endorse an ongoing effort by one party to entrench its power in judiciaries, which in turn help it entrench its power in legislative and other elections, which in turn give it more power over judiciaries. This is a legitimation crisis: a power entrenchment strategy has now culminated in a President who openly denigrates democratic processes. Refuse to be complicit.