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
When Dave Pozen and I wrote our article two years ago on asymmetric constitutional hardball (building on the important and ongoing work by Mark Tushnet), our bottom line was that the constitutional hardball we observe is reciprocal but not symmetrical. Both Democrats and Republicans engage in constitutional hardball, and predictably tend to do so in response to one another; but for at least the past 25 years or so, the Republican party has simply played harder hardball. Over and over, Democrats do respond. But they respond with much less aggressive forms of hardball. Our article was primarily devoted to explaining why this was happening.
Pushing through the Amy Coney Barrett nomination, in the middle of an election in which voting is well underway, with voting disputes reaching the Court every day, just four years after blocking Merrick Garland’s nomination for nearly a full year on the grounds that it was “an election year,” is obviously a monumental act of constitutional hardball. This morning the Senate Judiciary Committee voted out her nomination. This itself involved a bit of hardball: the twelve Republicans on the committee broke (and acknowledged breaking) a committee rule that had held that two members of the minority party must be present to conduct business. Democrats refused to show up at today’s hearing as a protest, so as to not “grant this process any further legitimacy,” in Sen. Schumer’s words. That refusal to show up was, of course, also a form of hardball, albeit a rather muted one.
This morning’s hearing starkly illustrated a dynamic we discussed briefly in the article: in order to justify constitutional hardball, partisans regularly tell stories in which the other side is engaged in lots of hardball, smashing norms in dramatic and powerfully escalating ways, while one’s own side has only responded, at most, in a measured and proportionate way. Both sides tell these stories. (Democrats have more material to work with on this score. But both sides work with what they’ve got.) The most extreme examples of this genre tell a story in which only the other side ever engages in constitutional hardball. The other side is always the aggressor and they do all the escalating. Our side always piously abides by norms, because we have ever so much respect for norms and process, whereas their side will break all the rules to get the outcomes they want. (At the extreme this narrative sometimes starts to lose coherence. By omitting the moves by one’s own side that in fact helped prompt each round of escalation by the other side, the more extreme narratives leave little in the way of explanation for the timing or scope of the other side’s hardball, except the other side’s general desire for power and apparently chaotic and capricious disregard for norms—it starts to sound as if the other side just wakes up each day and asks, what norm should I violate today?)
What occurred to me this morning as I listened to a bit of the hearing on the radio was that the weaving of this sort of wildly one-sided narrative is itself an important form of constitutional hardball. Call it narrative hardball. And it, too, appears to be reciprocal, but not symmetrical. Both Democrats and Republicans tell stories that emphasize the other side’s hardball. But I think it is safe to say that no Democratic version of this narrative has ever come close to the heights of one-sidedness reached by various Republicans at today’s hearing, especially Senator Mike Lee. Lee’s extremely lengthy comments focused on what he called the “decades of vicious, unilateral escalation” by Democrats. He’s serious about the word “unilateral.” As he explained (emphasis definitely not added by me): “Every norm broken, every act of escalation, one party, the Democrats, has been the aggressor, in every single instance. At every step along the way, our side has used our constitutional authority and the other side has abused its authority. There is no tit for tat, there is just tat.”
That is quite a claim. Below the fold I’ll briefly say a little about how it’s wildly at odds with reality. But here I want to open out to a larger point. If you want to justify big acts of constitutional hardball, it apparently helps to have a narrative that shows it’s really mostly (or even entirely!) the other side playing hardball. (This is part of why Republicans like to spend their time right now, in the midst of their own massive act of constitutional hardball, talking endlessly about possible future scenarios in which Democrats engage in court-packing.) If Democrats do in fact take control of the White House and Congress in 2021, will they engage in narrative hardball themselves, to help justify their own forms of hardball? Surely some will want to try. And they have an easier starting point, since Republicans have in fact played some amazing hardball of late; just ask Justice Garland. But Democrats will also face some constraints that guys like Mike Lee frankly do not face. Ask yourself, Democrats and liberals: are you willing to engage in Mike Lee-style distortions of history, in which “in every single instance” it’s the other side that’s playing hardball? I suspect the answer is no. Even if you favor forms of hardball such as eliminating the filibuster, etc., you want to justify it without resorting to contorting the historical narrative. Reality is asymmetric enough, you’ll say! And fair enough. But willingness to play narrative hardball may be yet another asymmetry, perhaps rooted in aspects of liberal and conservative ideology, perhaps the asymmetry of the partisan echo chambers, perhaps other factors Dave and I spent way too much time thinking about two years ago, or ones we didn’t think of, that will give Democrats a steeper hill to climb in 2021.
I now think that the real beginning of the modern judicial confirmation wars, which coincides with the modern re-polarization of the parties, was Nixon’s unprecedented efforts to use the powers of the federal government, including the IRS, to hound sitting liberal Supreme Court Justices from the Court. It is easy to miss this beginning because the parties were not yet all that polarized, so it's more of a story of liberals and conservatives than Democrats and Republicans. Still, it was a dramatic use of constitutional hardball. Nixon successfully hounded Abe Fortas from the Court, and his four appointments were actually the beginning of conservative judicial dominance. Adam Cohen spends a lot of time on this moment in his recent book and I think he’s right to weight it so heavily.
A key escalation was Reagan’s nomination of Robert Bork. Nixon had certainly put some conservatives on the Court. But he had not attempted to appoint a Justice who had strongly advocated the position that public accommodation laws were unconstitutional, and further, that it was impossible to justifyBolling v. Sharpe. Bork might leave existing court decisions in place on stare decisis grounds, he said, but in his view, the government should never have had the power to desegregate either the schools or the lunch counters in Washington, D.C. Bork was not a George Wallace-style opponent of desegregation. He was a Barry Goldwater-style, libertarian-inflected opponent of desegregation. The American people rejected both Wallace and Goldwater as too extreme. And it was a very important moment for American democracy and for equal protection of the laws when Democrats voted down Robert Bork’s nomination as too extreme for the Court. Ted Kennedy’s famous speech, the linchpin of Bork’s defeat, held that “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters,” and so on. All this was literally true, in the sense that if Bork had been on the Court and had commanded a majority, major Supreme Court decisions such as Roe v. Wade and Heart of Atlanta Motel would have come out the other way. In parts of the United States, back alley abortions would then have remained common, and lunch counters segregated.
But to Republicans today, defeating Bork was the original sin. It was an act of Democratic partisan hardball that came out of nowhere. As Lindsay Graham put it this morning at the hearing, of Democrats, “They started this. I didn’t.” According to Mike Lee this morning, Bork’s “only offense was that he was a conservative.” Democrats’ attacks “were dirty, and they were downright dishonest.” And that was just the start of a long calumny of decades of narrative hardball, from the “high-tech lynching” of Clarence Thomas to the “false” accusations by Christine Blasey Ford (whose name Lee won’t say, since in his telling it was really “the Democrats”) against Brett Kavanaugh.
Skipping closer to the present day, the most important single fact about judicial-nominations hardball in the 2000s was the dramatic escalation, primarily by Republicans, of the use of the filibuster. Here is one accounting:
By 2013, with three vacancies on the D.C. Circuit, Republicans simply decided to filibuster all Obama nominees. This prompted the Democrats to engage in a significant act of constitutional hardball: they used the “nuclear option” to end the filibuster of non-Supreme Court nominees.
But Lee engages in enough narrative hardball to build a story in which it appears Republicans did nothing at all. It was only Democrats playing hardball. “Under President Obama, Republicans accepted the Democrats’ practice and required supermajority cloture votes for judicial nominees. After a few years of this, Democrats got tired of having to play by their own rules, and so, they broke them.”
Amazingly, even the Merrick Garland blocade—no hearings, no votes, on a moderate and older nominee deliberately chosen because prominent Republican Senators had previously said Garland was just the sort of nominee they would approve—is not even an instance of Republican hardball, according to Lee. He understandably devotes few words to this episode, but what he has to say is this: “The Senate, following precedent established by Democrats decades earlier, rejected that nomination.”
I have many questions about Lee’s extreme form of narrative hardball. The most basic is: Does he really believe it? Given the closed nature of conservative echo chambers today, it is certainly possible that he might. But in a way it doesn’t matter. Narrative hardball, and the asymmetry in the two party coalitions’ present practice of it, is not limited to Donald Trump. And it strongly suggests that a certain Trumpy creativity in building a new reality is likely to outlast Trump.
When Democrats next have power, they will have tricky meta-choices to make about whether and how to engage in similar narrative hardball in support of their own constitutional hardball. My guess is that they will not respond in kind. And that is also my hope. Reality is indeed asymmetric enough. Narrative hardball is too antithetical to other liberal values. But the further Republicans go, both in substantive hardball and in narrative hardball, the more likely it is that finally, someday, even the Democrats are likely to be able to justify significant acts of constitutional hardball. The next chapters of this story are becoming very hard to predict.