Is Democracy Cooked? The Voting Problem in the U.S. Congress and the Role of Judiciary Appointees
Is American democracy cooked? There is value in voting for chronic pessimists. Political action is not limited to the presidential election, and neither is voting mutually exclusive of anything else. Every four years, you are offered the opportunity to weigh in on a court system that has been vandalized intentionally, maliciously, and gleefully. A vote can be a hopeful expression of pure spite, and an act of desperation. A ballot is a way to say I don’t agree.
And others — like myself — see this as a vast and intractable problem that will never be solved in our lifetimes. The GOP has been captured by a bunch of religious zealots and head-measuring weirdos that can’t be trusted to appoint a sane judge. The judicial appointees of the Democratic president are bailing out the sinking ship. The judges have deemed themselves the arbiters of agency regulation, they have made themselves the referees in disputed elections, and they continue to blow up what voting rights were established by the Constitution.
What this does for you, as a voter, depends on your innate temperament. Some see these facts and conclude that voting has a real impact. Regardless of what promises are made, the mere fact that the candidate has aligned themselves with a left- or right-leaning national apparatus will have a direct effect on how America is governed. A vote is not an impotent and meaningless non-choice between two figureheads who promise all kinds of things that may or may not happen; a vote does, in fact, convert to political voltage. For the optimist, this assurance is enough.
The Supreme Court isn’t going to work: It is going to be a tragedy for the American people, not the Supreme Court: The case against a political power grab
There are, of course, proposals to pack the Supreme Court or to impose judicial term limits. The political feasibility of these options is nonzero. But they are completely dependent on electoral victories for politicians who themselves have not publicly committed to fixing the judge problem.
The Supreme Court has more time to devote to it than the lower courts, but they still decide many more cases. During the last year of the Obama administration, when Republicans controlled the Senate, not one nominee to a regional appeals court was confirmed, though 10 trial court judges, a tiny fraction of vacancies, were. There were 105 judicial vacancies to fill on the day Trump was sworn in.
Legal observers were aware of the impact of what was happening, but few thought a power grab was about to make the problem worse. Earlier this summer, a SCOTUS majority stacked with Trump judges overturned Chevron v. Natural Resources Defense Council, expanding the power of the federal judiciary more than ever. The ruling in West Virginia and the expansion of the major questions doctrine gutted the power of the administrative state. Agency rulings — on carbon emissions, consumer protections, net neutrality — were now subject to second-guessing by any of the hundreds of jackasses in random middle-of-fucking-nowhere district courts, plopped in those seats by Trump between 2017 and 2020. Whatever is national policy is past the notice of the Trump judges.
The current Supreme Court supermajority will be many decades away from aligning with the actual beliefs and values of the American people. Still, there is a ridiculously high potential for chaotic outcomes when it comes to such a small pool of people. A rogue Boeing plane door or superyacht catastrophe could immediately change the balance of power within SCOTUS.
Although the deaths of Justices Scalia and Ginsburg prove that nothing is certain, they were far older than any member of the current court. Ginsburg and Scalia were days away from turning 80. In contrast, the oldest members of the current court are also among its most conservative. Justice Clarence Thomas is 76, followed by Justice Samuel Alito, and Supreme Court Chief Justice Roberts.
Why do we care about the judiciary? Some conservatives can understand why the Republicans are blocking judicial nominees in their local courts of appeals
The simplest case to explain why you should vote is here. A president can set a national agenda by speaking directly to the country, and as the de facto leader of their political party, they have traditionally had a heavy influence on national policy and lawmaking. But these are largely powers that exist because of tradition, creative politicking, and the public imagination. The power to nominate federal judges, on the other hand, is a power that is explicitly enumerated in the US Constitution.
In the meantime, Justice Clarence Thomas, the most senior and seasoned Supreme Court justice, provides a lesson of longevity and power. If he serves another three years, he will break Justice William O. Douglas’ 36-year record for length of service on the court. Thomas will be making decisions when the new president takes office in January.
Harvard’s Feldman says he sees no light at the end of the tunnel when the parties are split, with a president of one party, and a Senate controlled by the other party. But dysfunction, he thinks could lead to change … eventually.
That is a dire prediction according to other conservatives. They expect that especially in states where both senators are Democrats, there would be horse-trading and a deal that allocates judicial seats — basically, the Democrats get one, for example, for every two or three GOP nominees.
Some of the most politically active conservative thinkers would like to see Thomas and Alito step down for younger conservative judges who could serve for many decades longer and move the conservative needle even further to the right. They see as their “farm team” the ultra-conservative Fifth Circuit Court of appeals, populated with former Thomas and Alito clerks whose decisions are often reversed even by the current conservatives on the Supreme Court, including the men they once clerked for.
Democrats are candid about this, even if they don’t attribute it. As one put it, “We would mostly be left with the politics of personal destruction, investigating every aspect of a nominee’s life to find something that is disqualifying.”
So, what recourse would the Democrats have in a situation like that? How might they fight a Trump nomination? After all, there is no filibuster anymore to block a vote. In response to the Republicans blocking judicial nominations, Democrats abolished the filibuster for lower court nominations. After Antonin Scalia’s death in February, Republican leader McConnell had held onto the Supreme Court seat until Trump was elected and nominated Neil Gorsuch.
Source: What could happen at the Supreme Court under Harris and Trump
What Happens if the Republicans Cross the Rubicon with the Garland Nomination? A Brief History of the U.S. Supreme Court
He says that the whole idea of a certain process having to be respected, regardless of the potential impact on one party or another. It’s not a norm if it doesn’t command general adherence.
NYU law professor Bob Bauer, who served as White House counsel for two years in the Obama administration, notes that institutional norms aren’t necessarily permanent.
“Given that we’re in a world of…controversial revolutionary decisions, neither party would be likely to give a positive vote to a nominee of the president from the opposite party,” he said.
Noah Feldman is a Harvard law professor who has written extensively about the court’s history and he says that Republicans crossed the Rubicon in 2016 with the Garland nomination.
Democrats like to think of themselves as being more responsible than Republicans, but the pressure would be immense if the Republicans did what they did to the Democrats.
Josh Blackman, a lecturer at the South Texas College of Law, Houston, says they’ll give you the Merrick Garland treatment. The seat will be open for three or four years.
Conservatives are determined to keep their majority on the Supreme Court. So what happens if Kamala Harris is elected president, but the Senate flips to Republican control?