Law and Politics in a Post-Ginsburg World

To the mattresses.

I’ve criticized Donald Trump savagely and accurately, ever since he descended down his gold-plated escalator on June 16, 2015, announced his candidacy for president of the United States, and caused American politics and the state of our democracy to descend with him to subterranean levels. And I’ve criticized the Republican party savagely and accurately, ever since it decided to allow itself to be hijacked, held hostage, and robbed by Trump and his enablers of the very noble and upstanding principles that caused me to identify proudly as a Republican from 1984-2016. Ever since leaving the Republican party in disgust over what it has become, I have made it abundantly clear that I am prepared to make common cause with Democrats for as long as it takes in order to ensure that the current iteration of the Republican party is utterly and completely destroyed, and that the earth on which it now stands is salted so that no seedling from this current, hellish iteration of the Republican party can be planted and take root anew. Put simply, the enemy of my enemies is my friend, and Trump and the Republican party he has hijacked and perverted are enemies, as far as I am concerned, so Democrats and the Democratic party have the support, aid and comfort of this onetime Republican.

Notwithstanding the vehemence and frequency of my objections to Trump, the Trumpenvolk, and the Trumpian Republican party, it is worth reminding people that I am not a Democrat. My political orientation is right-of-center libertarian pragmatist, and in the wake of Justice Ginsburg’s untimely demise–which I mourn, and whose consequences I view with alarm–it is time to state anew that my jurisprudential philosophy is far more in accord with the late Justice Scalia than it is with the late Justice Ginsburg (though I will be the first to acknowledge that Ginsburg was a legal titan whose work to promote gender equity ought to be celebrated by everyone). I am an adherent of original public meaning jurisprudence; I believe that the Constitution and statutes ought to be interpreted according to the original public meaning of the words and phrases used to write up the Constitution and those statutes, that judges should interpret and explain the law, rather than write it and act as super-legislators, and that consequently, courts should try to avoid addressing and eliminating deficiencies in laws–leaving that task to legislative bodies.

To be sure, this means that there will be rulings to which I will instinctively object on policy grounds once I hear of them; in such instances, I try to remind myself that a legal analysis of the issues at question in such a ruling might cause me to climb down from my outrage over the ruling in question, and to consider instead that the law at issue might have been badly written with a bad policy outcome, and that the proper response is for the relevant legislature to do something about the matter at its soonest opportunity.

I adhere to my jurisprudential philosophy because I think that it is the best jurisprudential philosophy around in terms of maintaining the ethos of good government. At the federal level, Congress is responsible for passing legislation, the president is responsible for signing the legislation into law, and the courts are responsible for interpreting the laws. When a case results in an outcome that highlights a negative policy impact from a particular law, Congress should amend that law accordingly via follow-up legislation, and the president should sign that legislation into law so that (insh’allah) the problem is fixed.

I also adhere to my jurisprudential philosophy because I believe that it does more to encourage and further civic participation than does a jurisprudential philosophy that allows courts and judges to act as super-legislatures, writing and rewriting laws as they wish, and making up law in ruling on a particular case. My jurisprudential philosophy places law-making power where it belongs–with Congress or other appropriate legislatures. You want to change the law on some matter or other? Then either run for Congress or your own legislature, or support a candidate whose views are in accord with your own. This does far more to increase the health of democracy than does reliance on courts to act as super-legislatures that have the power to change laws without all the muss and fuss of campaigning and winning elections that give elected officials actual popular mandates to write and rewrite laws. A related point: During my first year of law school, Justice Scalia came to make a speech, in which he (surprise!) outlined original public meaning jurisprudence and his support of it. He pointed out that back in the day–when dirt was new and dinosaurs walked upon it–the common response of the populace to some sort of public policy failing would be “there ought to be a law” remedying the failing in question. By contrast, when Justice Scalia spoke to us–and in all the years thereafter–the response of the populace to a public policy failing tended more to be “that’s unconstitutional!” Well, some public policy failings are unconstitutional. But a lot aren’t, and the latter group–which I daresay outnumbers the former group–can be remedied by legislative action, rather than by a court acting as a super-legislature and creating new law out of whole cloth.

My more progressive friends–I happily and proudly have many–might object to my allegiance to original public meaning jurisprudence by arguing that my jurisprudential philosophy is a rights-limiting enterprise. And to be fair to them, it can be, if the underlying statute or constitutional provision, when interpreted properly, leads to a bad policy outcome. It also can be if the judge or judges issuing a ruling act more like political hacks than like impartial judges. The responses to progressive objections on this score are twofold. For one thing, judges shouldn’t act like political hacks, and it is better–and we get more honest legal decisions–when they don’t. In his speech and talk at my law school, Justice Scalia pointed out that while he didn’t like joining Justice Brennan’s majority opinion in Texas v. Johnson, he believed that an original public meaning interpretation, properly conducted, could lead to no other outcome. (It is worth noting that while one of the dissents to the majority opinion in Johnson came from the conservative originalist Chief Justice Rehnquist, the other came from Justice Stevens, who became a liberal hero, notwithstanding his appointment to the Court by a Republican president.) The second response would point out that original public meaning jurisprudence can be a rights-expanding enterprise as well. At the end of its most recent term, the Court issued a ruling in Bostock v. Clayton County that constituted a sweeping victory for gay and transgender workers. The author of the decision? Justice Neil Gorsuch, who used an original public meaning reading of Title VII of the 1964 Civil Rights Act to deliver the win for the LGBTQ community (it is worth noting that Chief Justice Roberts joined in the majority opinion). As the outcomes in Johnson and Bostock make clear, original public meaning jurisprudence can–and often does–augment and safeguard rights and liberties, especially when an underlying constitutional provision or statute has policy outcomes that are considered laudable and desirable in a free and democratic society. (Related to the analysis of the Court’s ruling in Bostock, George Will pithily and accurately describes the difference between political hacks and impartial judges at the end of this piece; the whole thing is worth reading.)

All of this is a somewhat long-winded way of saying that any judge nominated by President Trump to fill the Supreme Court seat vacated by Justice Ginsburg’s untimely death will have jurisprudential views that are far likely to be far closer to my own than were Justice Ginsburg’s general jurisprudential views, or the general jurisprudential views of any figure who espouses “living constitutionalism.”

And notwithstanding that fact, any such judge–no matter how much she (Trump says his eventual nominee will likely be a woman) may agree with me–should be utterly and comprehensively rejected by the United States Senate, and I will take a backseat to no one in leading the charge against confirmation.

Let us discuss the reasons why:

1. At the risk of re-reciting a history that should be drearily familiar to all of us, back in 2016, Justice Scalia died, and nine months before the election that sent us to the current post-apocalyptic hellscape we currently inhabit, President Obama nominated Judge Merrick Garland of the DC Circuit Court of Appeals to fill the seat vacated by Justice Scalia’s untimely death. Judge Garland had, throughout his public career, garnered many a verbal (forgive the pun) garland from Republican senators–many of whom said things like “if only Democrats would nominate judges like Merrick Garland to the Supreme Court and lower federal courts, Republicans like me would enthusiastically join them in voting for the nomination” to demonstrate their bipartisan bona fides. Notwithstanding that fact, Mitch McConnell declared that not only would Judge Garland not get a vote in the full Senate, he would not get a hearing before the Senate Judiciary Committee, and Republican senators would not even meet with him in the privacy of their offices for courtesy discussions. The excuse given was that a president in the last year of his term should not get to choose a Supreme Court justice, and that the choice should be delayed until after the election.

This was an invented rule by McConnell, if ever there was one, but plenty of Senate Republicans signed on to it in order to deny Judge Garland anything resembling fair play. To be sure, the Senate has every right to refuse to act on a presidential nominee, but it doesn’t help good governance or the cause of democracy when one side is all about coulda, not shoulda.

Nevertheless, the precedent was set, and the McConnell rule was set. Now, however, the McConnell rule is being amended; McConnell has sought to clarify that the McConnell rule is only to be used in years like 2016, when there is a president of one party, in the last year of his/her term, and a Senate of another party–because this year, both the Senate and the White House are controlled by Republicans, McConnell now claims that the McConnell rule doesn’t apply. As any idiot can tell, this is an especially absurd manifestation of political Calvinball; next, McConnell will tell us that the McConnell rule doesn’t apply because 2016 was a year that ended with a 6, and 2020 ends with a 0, and the McConnell rule multiplied by 0, equals 0, leading to no application of the McConnell rule being allowed, or some other such silly rationalization. And of course, now, other Republicans who signed onto the McConnell rule in 2016 are busy trying to back away from its application this year; apparently, there is a belief in Republican circles that being inducted in the Calvinball Hall of Fame on the first ballot is something to boast about in political races.

To call all of this behavior stinkingly hypocritical is to insult stinkingly hypocritical behavior via the comparison. And for Democrats not to fight fire with fire would constitute political malpractice. For this reason, and for this reason alone, any opposition to any judicial nominee put forth by Trump ought to be opposed, and this reason alone justifies my opposition to any judicial nominee put forth by Trump; while Republicans might be willing to throw intellectual consistency and fair play over to the side, I most certainly am not, even if any future Trump nominee might agree wholeheartedly with my jurisprudential philosophy.

(Relatedly, don’t even start with me regarding bulls*** claims on “the Biden rule.” I don’t want to hear it; refrain from wasting my time.)

2. We should be okay with this guy selecting Ruth Bader Ginsburg’s successor?

Seriously?

Are you s***ting me?

I am pleased to see that as of today, Senate Democrats have put Republicans on notice by stating that any effort on Trump’s part to put in place a successor to Justice Ginsburg before the election will mean that if and when Democrats take the White House and Senate next year, no act of retribution will be off the table. Perhaps that will suffice to deter bad behavior by Republicans, but after nearly four years of the Trump administration, and after multiple years of Republican bad behavior during the Obama administration, I know better than to bet the farm on the notion that Republicans will suddenly see the light and decide not to break laudable norms.

As such, if Republicans decide once more to subordinate all other considerations to the consideration and objective of gaining power for power’s sake, Democrats should undertake the following acts of retaliation if/when (pray God) they take the White House and control both chambers of Congress next year:

1. Eliminate the legislative filibuster in the Senate. I was willing in the past to keep it around because I thought that George Washington’s apocryphal justification of the existence of the Senate to Thomas Jefferson was a good one, and because I thought that the filibuster aided and aids in the cooling process when it comes to dealing with piping hot legislation. Nowadays, I think that the filibuster does more harm than good by serving to bottle up potentially good legislation simply for the purposes of partisan point-scoring. And when it comes to this particular discussion, keeping the legislative filibuster around will only serve to frustrate righteous and justified acts of retaliation against any Republican attempt to confirm a Supreme Court nominee before January 20, 2021, when (pray God) Joe Biden and Kamala Harris may be inaugurated as president and vice president of the United States.

2. Once the legislative filibuster is eliminated, Congress should pass and a President Biden should sign legislation admitting Puerto Rico and the District of Columbia into the Union as new states, thus giving Democrats at least two more seats in the House of Representatives and four more seats in the United States Senate. Hell, if it can be promised that they will vote for Democrats, I am all for admitting the U.S. Virgin Islands, Guam, the Northern Mariana Islands and American Samoa for a grand total of at least six more seats in the House, and twelve more seats in the Senate. Because f*** Republicans, that’s why.

3. A newly expanded Democratic Congress should pass legislation expanding seats on all United States circuit courts of appeal by ten seats–which would lead to a total of 120 new seats. A President Biden should then nominate judicial candidates to fill all of those seats, and a Democratic Senate should act on those nominations without delay, ramming them through as mercilessly as Mitch McConnell rammed through Trump’s judicial nominees.

4. A newly expanded Democratic Congress should pass legislation expanding the size of the United States Supreme Court to 21 justices. A President Biden should then nominate judicial candidates to fill all of those seats, and a Democratic Senate should act on those nominations without delay, ramming them through as mercilessly as Mitch McConnell rammed through Trump’s judicial nominees.

5. An expansive and wide-ranging voting rights act should be passed that will comprehensively dissipate the deleterious effects of the Supreme Court’s ruling in Shelby County v. Holder, by removing any and all obstacles preventing minority communities, people of color, economically challenged communities, and any other constituencies that might be inclined to vote for Democrats from exercising their right to vote. Included in this legislation should be provisions to restore the franchise to convicted felons who have completed their prison sentences, provisions that will prevent fees and fines from being impediments to the right to vote, and a provision that declares Election Day itself to be a national holiday; the better to facilitate voting, my dears.

6. Other such provisions designed to screw over Trumpian enablers, the Trumpenvolk at large, the Republican party in general, and Donald Trump if at all possible, at every single turn imaginable, assuming that the constitutional prohibition against bills of attainder is not violated.

These retaliatory provisions may seem harsh, but (a) I don’t care; (b) I really don’t care; (c) as Jacob Levy points out, “[r]etaliatory punishment of norm violation is a pro-cooperative strategy,” so the use of retaliation that is swift, certain and fair will likely go a long way towards restoring laudable norms; and (d) my patience with the lowlifes who now “govern” us has long since been exhausted, so have I mentioned how little I care? Ever since the Republican party surrendered itself to Trump, and ever since Trump became president and lived down to every subterranean expectation I have ever had of him–and then some–I have maintained that in the aftermath of any defeat of Trump, Trumpism, Trumpian enablers, the Trumpenvolk in general, and the Trumpian Republican party, a Carthaginian peace *must* be imposed so that no person or political entity/movement has any incentive whatsoever for a very long time (forever, ideally) to be this insane and destructive again and think that they can get away with it.

And as a reminder, I have written all of the above as a right-of-center libertarian pragmatist who once was a Republican.

Imagine what I would be writing if I was a straight-on leftist.

(Photo Credit.)