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Teri Kanefield How Biden and Democrats should react to McConnell's Supreme Court comments

Congress can either enact a creative good-governance solution depoliticizing the court or risk our government's slipping further into dysfunction.
Image: Mitch McConnell, Senate Lawmakers Speak To Media After Weekly Policy Luncheons
Mitch McConnell, R-Ky., then the Senate majority leader, speaks to reporters in Washington on March 10, 2020.Samuel Corum / Getty Images file

Senate Minority Leader Mitch McConnell, R-Ky., said Monday that it's "highly unlikely" that he would allow President Joe Biden to fill a Supreme Court vacancy in 2024 if he becomes Senate majority leader. McConnell also said he may not even allow a hearing in 2023 if a seat became available then.

McConnell's comments aren't super surprising, which is part of the problem.

McConnell's comments aren't super surprising, which is part of the problem. In 2016, when Justice Antonin Scalia's seat became vacant, McConnell, then the majority leader, vowed to prevent President Barack Obama from filling the seat. The Constitution provides that the president "shall nominate and, by and with the Advice and Consent of the Senate, shall appoint ... judges of the Supreme Court." In legal language, "shall" functions as a command. There is no option. The provision also involved the Senate in the decision. But McConnell saw an opportunity to grab power for himself that the Constitution didn't actually confer: Because the Senate must give advice and consent, he decided to entirely withhold consent. The seat wasn't filled until after Donald Trump became president.

Now, five years later, McConnell is doubling down.

Legal scholar Mark Tushnet describes McConnel's power grab as "constitutional hardball" — behavior that isn't technically forbidden by the Constitution but which subverts the intention of the Constitution. Its practitioners are seeking to permanently stack the game in their favor, undermining the democratic process. Constitutional hardball by its very nature batters and damages democratic institutions.

It's easy to see why the Republican leadership wants to permanently stack the game in its favor. The Republican Party is having trouble winning national elections, because, for one, its numbers are shrinking. The Republican base — largely white and increasingly catering to white supremacists — is shrinking. In a rare moment of honesty, a Republican senator, Mike Lee of Utah, said that "democracy is not the objective" of governing.

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When McConnell engages in a brazen power grab, the temptation may be to urge Democrats to respond in kind. But if both sides engage in constitutional hardball, both sides will be battering democratic institutions, which means they are likely to end up weaker, not stronger. Such short-term thinking may cheer and rally the liberal base, but the Democrats will then present themselves to the wider voting public as no better than the Republicans. "They did it first" is never a moral justification for bad behavior. To quote Steven Levitsky, the Harvard professor and author of "How Democracies Die," "Escalation rarely ends well."

A long-term solution — and a way to both blunt McConnell's power grab and possibly forestall future power grabs — could lie in a concept that legal scholar David Pozen calls anti-hardball reform. Anti-hardball tactics "forestall or foreclose tit-for-tat cycles and lower the temperature." They do this by responding in ways that blunt power grabs without putting additional pressure and stress on the democratic institutions. They avoid escalation. Put another way, Pozen argues that anti-hardball tactics are "good government rules that both sides would adopt if they didn't know the underlying partisan dispute."

This isn't to say that the Democratic response to comments like McConnell's should be passive or mild.

This isn't to say that the Democratic response to comments like McConnell's should be passive or mild. On the contrary, the public needs to understand that McConnell is engaging in democracy-undermining behavior, which in turn makes the midterms next year even more important. A party that campaigns on an anti-democratic platform must be stopped at the ballot box.

But big picture, the Democrats should rally support for anti-hardball solutions that would prevent the Supreme Court from remaining a political football.

As an example of this kind of reform, legal scholars Steven Calabresi and James Lindgren suggest that Congress regularize selecting Supreme Court justices by creating legislation allowing for new appointments every two years and transferring justices into some sort of senior or alternate status after they have served 18 years. (Presumably this process would stop or pause when a particular number of justices has been reached.) Replacing justices who have served for 18 years would continually renew the court.

Such legislation could be designed in a manner that comports with Article II's comportment clause and Article III's good behavior clause. Moreover, the Constitution allows Congress to restructure the court or add justices. (Congress, in fact, has changed the number of justices several times.)

Another example of anti-hardball reform would be for Congress to dramatically increase the number of justices so it wouldn't be possible for each judge to hear each case. Instead, cases would be heard by randomly selected panels, making partisan divides less overpowering. To quote legal scholar Adam Levitin, this would take away the "winner takes all" dynamic now, in which the partisan majority is monumentally difficult to overcome.

To qualify as an anti-hardball tactic, additional justices would have to be appointed in a way that satisfies both parties and the "good government" rule, perhaps by creating nonpolitical or bipartisan selection committees. Or, to begin with, both parties could make an equal number of appointments.

Both of these possibilities would depoliticize the court and make McConnell-style partisan power grabs harder to pull off.

It's obvious, given the behavior we've seen lately, that current GOP leadership wouldn't go along with a good-governance plan. It's more likely, though, that Democrats would. Biden has appointed an independent commission of legal scholars, retired judges and practicing lawyers to research and recommend a plan to reform the courts. Biden himself said the court must cease to be a "political football."

Meanwhile, Democrats largely feel that McConnell already stole one Supreme Court seat and that he is threatening to steal another. After all, as law professor Jed Shugerman pointed out, Democrats won the popular vote in six of the last seven elections, and yet Republicans have appointed the vast majority of sitting justices. The Democrats — as well as the public at large — therefore have much to gain from depoliticizing the Supreme Court and making it harder for McConnell to continue stacking the court with conservative justices.

McConnell's obstructionism, combined with the reluctance of some Democratic members of Congress to end or modify the filibuster, unfortunately means a good-governance solution may have to wait until the Democrats build a larger majority or revise the filibuster, which would allow them to pass laws more easily. In the meantime, we can hold out hope that at least some Republicans can be convinced that such a rule benefits them. After all, it would forestall the possibility that the Democrats, if they gain larger congressional majorities next year (or in any election), could stack the Supreme Court against the GOP.

Congress can either enact a good-governance solution depoliticizing the Supreme Court or risk our government's slipping further into dysfunction — and surely enough of our leaders want to prevent that.