De-Politicization of the Supreme Court Nomination Process: A Practical Plan for Temporary Court Expansion

Abstract

The death of Ruth Bader Ginsburg, 45 days before the November 3, 2020 presidential election, ignited a titanic political firestorm over the nomination of her replacement by President Trump. In a stunning reversal of his prior position, Majority Leader Mitch McConnell announced within hours of RBG’s death that the Senate would hold a confirmation vote on Trump’s nominee despite having refused to consider any nomination by President Obama to fill the seat vacated by the death of Antonin Scalia for a norm-busting 237 days before the 2016 presidential election. Attempting to justify his actions, Leader McConnell stated in 2016 that “[t]he American people should have a voice in the selection of their next Supreme Court Justice. Therefor this vacancy should not be filled until we have a new President.” This paper proposes a Plan, consistent with constitutional powers granted to the President and Congress and with historic precedents, by which the Democrats could respond to the unprincipled maneuverings of Leader McConnell, while seeking in the long run, to de-politicize the nomination process and improve Court legitimacy. The proposed Plan involves legislation (the Merrick Garland Supreme Court De-Politicization Act) that would add immediately two Supreme Court Justices, as permitted by the Constitution and substantial precedents, but only for a limited time. To prevent future tit for tat expansion, the legislation would allow for the appointment of two additional Justices by the end of the next President’s first term unless a proposed Constitutional Amendment is adopted to eventually return the Court size to nine upon departure of the first two Justices created by the legislation. Of course the Plan assumes that the Democrats achieve unified control over Congress and the presidency as a result of the November 3, 2020 election. The effect would be to convert the likely 6-3 conservative super majority of the Court (assuming RBG’s replacement nomination is approved by the Senate) to a more balanced 6-5 tilt in favor of conservatives or even 6-7 in favor of Justices appointed by Democratic presidents. To handle the inevitable negative reaction, the proposed Constitutional amendment would freeze the number of Justices, first at eleven and eventually nine, once the “Scalia” and “RBG” seats are vacated. Unlike most other proposals for Court reform advanced by progressives, this proposed Plan is moderate and practical. In particular, the legislation would add third and fourth seats only if the linked Constitutional amendment fails to be adopted during the first two years of the next administration. By threatening the additional two seats, Republicans will have a powerful incentive to reach agreement with the Democrats on a depoliticized nomination process and revised Court structure and/or jurisdiction. To that end, the proposed Constitutional amendment also includes a second section that provides for automatic confirmation of all Supreme Court nominations made 90 days before a Presidential Election Day. Should the Senate fail, after 90 days, to provide “Advice and Consent” via a recorded final vote, the nomination would be treated automatically as “confirmed.” In recognition that certain McConnell arguments were only misapplied but were otherwise valid, a third section of the Amendment provides that no nomination may be made by the president during the period starting 90 days before the next Election Day for President and ending on the next occurring Presidential Inauguration Day. Sections 2 and 3 would thus insure that no future Majority Leader would be able to engage in the type of raw-power, partisan maneuvering that characterize Mitch McConnell’s stewardship of the Senate’s Supreme Court Advice and Consent functions. Other Court reforms such as proposed by Ryan D. Doerfler and Samuel Moyn and/or by Daniel Epps and Ganesh Sitaraman could be considered to avoid the need to add the second pair of Justices. This paper discusses a number of likely challenges to adoption of the proposed Plan including the potentially negative consequences that would result in a Supreme Court constituted by an even number of Justices. This could occur under the proposed Plan over a considerable period of time should the departure of the newly added first and second justices occur at widely separated times. To test the seriousness of this challenge, a statistical study was undertaken of the historic vote coalitions occurring in all Supreme Court decisions rendered during several different periods, over the last four decades, in which the decisions were considered by courts consisting of either nine justices or eight justices. The study was made using the on-line Supreme Court Database of coded decisions maintained by the Washington University Law School. The results of this study demonstrate, strongly, consistently and counter-intuitively, that courts constituted by an even number of Justices resolve a higher percentage of cases by overwhelming majorities as compared with courts constituted by an odd number of Justices.