On a Pro-Democracy Movement

Immediately following Justice Scalia’s death, Senators McConnell and Grassley suggested “the American people . . . should be afforded the opportunity to replace Justice Scalia.” Their gambit that the election would produce both a Republican president and Senate has paid off. Their choice of words, however, serves to demonstrate both the hypocrisy inherent in political rhetoric and in the American political system.

Had they been true to their word, the opportunity to replace Scalia would have been given to Hillary Clinton. She was the choice of the American people, though not that of the presidential electors. At a minimum, the Senate should have taken up the nomination of Merrick Garland, the nominee-in-waiting. Of course, McConnell and Grassley glossed over that inconvenient truth and didn't skip a beat in equating the election outcome as representing the will of the American people.

More significant than the rhetorical gymnastics of politicians is the sad irony that a nation that touts itself as a democracy, that fights wars in the name of democracy, that implores other nations to give voice to the people in democratic elections has shown that it is not itself a democracy. For the second time in the past five elections and for the second of only three presidents in this century, the candidate approved by the people has been pushed aside, and the loser was inaugurated as our new president. The one rejected in a vote by the American people became the spokesperson for the American people, the Chief Executive, the Commander-in-Chief. That’s what passes for democracy in America.

Despite calls over the years for the direct election of the president, the system of electors chiseled in Constitutional stone will surely never be changed. The necessary two-thirds of Congress to propose and three-fourths of the states to approve any amendment is an insurmountable barrier. One of the compromises effected by the framers of the Constitution to entice small states into the union provided each state with the number of electors equivalent to its representation in the Congress. While the House obtains representation roughly proportional to the population of the state, large and small states alike have two senators and, consequently, two additional electors for however many they have based on the size of their House delegation. The resulting disproportionality is considerable and stands in stark defiance of the basic one person-one vote principle of democracy we require of our states. Wyoming, for example, has roughly one elector for each 195,000 residents; California has one for every 712,000 residents.

What America needs is exactly what it has supported around the world, a pro-democracy movement. Protests in opposition to specific actions and policies need to have a positive focus to bring about desired change. Demonstrations against actions of Donald Trump are important but there’s a more important principle at stake. The structural defects in our democracy must be set right. Everyone’s vote must be counted equally. That involves eliminating political gerrymandering, insuring proper registration of all potential voters, and, most importantly, allowing the people's choice for president to become the president.

There are workable fixes not requiring an amendment to the Constitution. Perhaps the one with the most traction at the moment is an interstate compact in which a state’s electors will be mandated to vote for the presidential candidate receiving the most votes nationwide regardless of the outcome of the vote in that particular state. This initiative, National Popular Vote, claims 11 states with 165 electoral votes have joined the compact with another 12 states and 96 electoral votes having had the resolution to join passed in at least one house of the legislature. The compact takes effect after enough states join to reach the 270 vote threshold.

Is this feasible? Initiated more than a decade ago, the results so far are underwhelming, though promising. But perhaps its time has come. The discrepancy between the popular vote and the electoral vote was stark, made all the more so by the rollback in policies as if most voters approved of these changes. But they do not, and the fact that America is not truly a democracy has never been more evident. While the Electoral College is the most glaring deficiency, political gerrymandering and voter registration problems are other issues. Poll after poll across states red and blue reveal support for the popular vote to determine the presidency. The time is ripe to harness the discontent with the electoral system and its aftermath, channeling it into a nationwide pro-democracy movement.

The Scalia Vacancy

Senators McConnell and Grassley suggest in a Washington Post opinion piece that “the American people . . . should be afforded the opportunity to replace Justice Scalia.” Would that we could, but there is no mechanism in the American political system for that to be done. The presidential election will be determined by an electorate (disregarding the electoral college for the moment) with numerous and varied motivations regarding their voting decisions. No president can claim a mandate for any specific policy decision based on his or her being elected. Even less can any particular outcome for the Senate races be deciphered as producing a mandate for any particular course of action.

McConnell and Grassley surely understand this and it would be refreshingly honest to say we oppose letting President Obama make a choice because we think the Scalia vacancy can help us win the presidency in November and maintain control of the Senate. And, if they wanted to be brutally honest, they could further say we don’t want to be in the position of having to reject an Obama nominee, which we can easily do, because it could jeopardize our vacancy.

But politics is not about honesty. It's about trying to persuade the public you occupy the high moral ground and that you have their best interests in mind, unlike your opponents. What will happen, of course, is that President Obama will forward a nomination to the Senate, presumably one whom he will tout as highly qualified, in an effort to make the Republicans as uncomfortable as possible. The Republicans then must either move or not move on the nomination, likely arguing that this nominee would tilt the Court in a most undesirable liberal activist direction.

One thing is for sure. This vacancy will add a most interesting dimension to this 2016 president election year.

The Court and Political Gerrymandering

If Congress’s approval rating was so low (10%) going into the 2012 election, why did over 90% of the incumbents in the House races win re-election? It starts with the fact that over 80% of the seats are considered safe—districts so disproportionately favoring one party as to virtually insure that the nominee from that party, incumbent or not, will be elected. That the Republican advantage of 33 safe seats proved to be exactly their margin of victory is no coincidence. While Democratic House candidates across the nation outpolled the Republicans by 49% to 48%, the Republicans nonetheless retain a 54% to 46% advantage in the number of representatives.

Why, you may ask, do the Republicans have so many more safe seats? Congressional districts are determined at the state level, and to the extent that a party can wield the power to draw the districts, it can parse them in a favorable manner. Take Pennsylvania, for example. Obama took the state, despite 50.9% of the electorate voting for the Republican House candidates compared to the 48.1% voting for Democrats. Close? Not really. That’s all it took for the Republicans to capture 14 of the 18 House seats (78%). The same was true in neighboring Ohio, the Republican House candidates gaining 51% of the vote but capturing 75% of the congressional seats. In both states, district boundaries were drawn by Republican legislatures with no effective input from the Democrats. On the other hand, two states over in Illinois, the Democratically-controlled legislature redrew the boundary lines to produce a +4 gain for them and a –5 for the Republicans, the state having lost one of its 19 seats due to the 2010 census. In Illinois, though, the Democratic total vote was 57% statewide, not so drastically different from the 67% of the available seats they won.

Some states have established commissions to draw districts in an effort to limit partisan control. In Arizona, for example, the nine districts were drawn to provide Republicans with four and Democrats with two safe districts. The remaining three were made competitive, and indeed they were. Although the Democrats did manage to take all three in 2012, the difference was only 3% in two of them and less than 0.5% in the other. The Republicans candidates received about 54% of the vote across all nine districts, but won only four of the nine seats (44%). In 2014 Republicans managed to pull out the close contest in District Two, now claiming five (55%) of Arizona's nine seats.

Ohio, Pennsylvania, and Illinois demonstrate the effectiveness of political gerrymandering, the drawing of districts designed to maximize the electoral advantage of one’s own party while marginalizing that of one’s perceived foes. As old as the republic itself, gerrymandering immortalizes Massachusetts Governor Elbridge Gerry, who signed off on the 1812 partisan redistricting by fellow Republicans (Democrats of the day) in which one of the districts bore some resemblance to a salamander.

Enter the Supreme Court.

The historical problem with gerrymandering is that the courts long considered it a political question that should not be addressed by the judicial branch. The Supreme Court ultimately found the 14th Amendment equal protection clause to require a one-person one-vote standard for districts and to enforce federal law regarding efforts to marginalize the voting power of various protected classes. Political gerrymandering, however, refers more directly to partisan efforts by one party against other electoral competitors.

That the Supreme Court is divided on the issue of political gerrymandering is no better illustrated than in this summary of the distribution of opinions written in the League of United Latin American Citizens v. Perry, a 2006 Texas case. It reads:

Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts II–A and III, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined, an opinion with respect to Parts I and IV, in which Roberts, C. J., and Alito, J., joined, an opinion with respect to Parts II–B and II–C, and an opinion with respect to Part II–D, in which Souter and Ginsburg, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Breyer, J., joined as to Parts I and II. Souter, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined. Breyer, J., filed an opinion concurring in part and dissenting in part. Roberts, C. J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Alito, J., joined. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Thomas, J., joined, and in which Roberts, C. J., and Alito, J., joined as to Part III.

It should come as no surprise that the Court breaks along partisan lines. The conservative bloc attempts at every opportunity to declare political gerrymandering as a nonjusticiable matter, overruling a previous case that established otherwise (Davis v. Bandemer, 1986). Their initial effort came in Vieth v. Jubilier (2004) in which Pennsylvania Democrats claimed Republican-controlled redistricting marginalized Democratic voters and ensured a disproportionate Republican congressional delegation, not unlike that found in the 2012 election. Scalia, writing for only four of the justices, argued that the 18 years since Bandemer had failed to produce any “judicially discernible and manageable standards” for addressing political gerrymandering, justifying the conclusion that such claims should not be considered by the federal courts.

Justice Kennedy, as the fifth justice who agreed with the disposition of the case at hand, nonetheless rejected Scalia’s argument, claiming that just because a standard had not emerged in this case did not mean none might emerge in future cases. So, while Scalia attempts to claim political gerrymandering is nonjusticiable, only four justices say so. Five claim such gerrymandering may well be justiciable. In dissent, Justice Breyer was more explicit,

“. . . political gerrymandering that so entrenches a minority party in power violates basic democratic norms and lacks countervailing justification. For this reason, whether political gerrymandering does, or does not, violate the Constitution in other instances, gerrymandering that leads to entrenchment amounts to an abuse that violates the Constitution’s Equal Protection Clause [Vieth at 361-2].”

The Court & the 2012 Election

Little attention has been given this presidential election to the Supreme Court. Yet, for decades, the Court has operated with an ideological divide that results in numerous 5-4 decisions, most recently with Justice Kennedy typically determining whether the conservatives or the liberals will prevail. During the 2011 term, for example, 14 of the Court’s 42 nonunanimous cases were of this type—7 in which the conservative bloc prevailed and 7 the liberal bloc. Kennedy was on the winning side in 13 of those 14 cases.

Republican presidents since Nixon have made clear that creating a conservative Court in their own ideological image is a high priority, but in making 13 of the 17 appointments available during that time, they have continually remained one justice away from securing that goal. It has remained elusive, not only because Republican presidents have not always chosen justices who share their conservative values, despite their efforts to do so, but because the president must be abetted in this effort by a like-minded Senate. The switch-hitting Kennedy joined the Court roster only because a Democratic Senate thwarted the nomination of President Reagan’s first choice, Robert Bork.

The 2012 election has been characterized as one in which the choice has never been clearer between two different perspectives of the role of government and the nature of our polity. That the Court is a single justice away from being more consistently conservative or liberal when such issues come into play contributes to the significance of this election. The appointment power will rest with either Obama or Romney, but the critical confirmation authority remains with the Senate and control of the Senate is distinctly up for grabs. The pressure is on the Democrats. While they now control the Senate, 23 of the 33 seats being contested have been controlled by the Democrats, including two Independents who have caucused with them, the Republicans risking only 10 of their incumbent positions.

Of course, it takes a vacancy to make an appointment, and none of these justices seem intent on creating one. The median age of the last nine departing justices has been 79. Ruth Ginsburg is there already, while Antonin Scalia and Anthony Kennedy will be there in three years. And while there is nothing magical about reaching the median departure age (Stevens was 90 before his retirement), only one justice in the past 50 years has died while serving on the Court (Chief Justice Rehnquist). So, it is a reasonable expectation that these justices will prefer to retire (they can do so at full pay) at some point in their illustrious careers.

Regardless of the electoral outcome, any appointment that promises to solidify one bloc of justices over the other will be met with considerable opposition in the Senate. Neither party is in position to carry a sufficient number of seats to override a filibuster by the minority. It will get ugly because the stakes are so high. After all, it was one of those 5-4 decisions that gave us President Bush rather than President Gore.

The Kagan Vote and What It Signifies

Predicting the Senate vote in Supreme Court confirmations is not difficult, either a statistician or any political pundit could make a pretty good guess. Statistically, using the Judiciary Committee vote as a predictor has typically meant that there will be about six "No" votes in the Senate for every negative vote in committee. If Lindsay Graham is the sole Republican committee member to support confirmation, the remaining six "No" votes suggest about 36 "No" votes in the Senate. Were Graham to cast a seventh "No" vote in committee, however, it seems unlikely there would be 42 negatives for Kagan on the Senate floor. This is perhaps the most conservative Judiciary Committee contingent for the Republicans in the voting history of the committee, and unanimous opposition by those committee members does not signal solidarity among all Senate Republicans. The New England contingent of Snowe, Collins, Gregg, and now perhaps Brown will not necessarily follow suit. If those four support Kagan, then the Republicans are poised to cast 35 votes against confirmation. Assuming all Democrats adhere to the party line along with the two Independents, then Kagan will have 65 votes propelling her into the Supreme Court. If she manages to pick up Senators Graham and Richard Lugar of Indiana, then she can accumulate 67 confirmation votes. Sotomayor received 68 last year.

Except for the party leadership, though, such predictions are fairly useless. The vote will be what it is. Assuming, however, these numbers come to pass, what they reveal is a politicized confirmation process, one in which Republicans have come around to the view that they may oppose a nominee on the basis of her political ideology and the anticipated liberal positions she might favor in particular Court cases. Not all opponents will be willing to admit that. A number will couch their opposition in terms of the military recruitment narrative favored by the Republicans, but acceptance of that narrative is itself a function of political ideology. More so than Democrats, Republicans have been trapped by their own rhetoric that pillories any results-oriented approach to evaluating Court nominees. Conservatives are no less results-oriented than the rest of us, but they must couch their opposition in language that suggests they are not driven by ideological concerns. Democrats built their opposition to Robert Bork in 1987 precisely on the basis that he was simply too conservative, "outside the mainstream" being their contribution to the rhetoric that infuses the contemporary confirmation process.

Those who decry the partisanship represented by the forthcoming vote fail to understand that the Court itself is part of the political process and, as such, so too is the nomination and confirmation process. Recognizing this is actually the first step towards creating a more serious dialogue in the confirmation hearing, paving the way for a dialogue on alternative conceptions of constitutional and statutory language, as well as other jurisprudential constructs. Clearly the Court is more constrained than other political bodies, but one cannot ignore the differences between a Justice Scalia and a Justice Stevens and having a discussion that would permit views like their to be discussed and debated in a Senate confirmation hearing would constitute a great exercise in civic education.

Acknowledging political differences does not mean that a senator must always vote his or her partisan preference. Like Lindsay Graham, a bona fide conservative, a senator could reason that Kagan is a liberal and likely to favor positions on cases before the Court that would be at variance with his. However, she's the nominee of a liberal president, she's replacing perhaps the most liberal justice on the Court, and, for a liberal, she seems to possess the temperament, intelligence, professional competence, and integrity that he hopes would characterize both liberals and conservatives on the Court.

Kagan will take her place on the Court, and the Court will be changed to some degree. She is not John Paul Stevens, and as yet, neither we, nor even she, know who Justice Elena Kagan will be.

Kagan Critique of Process Intact

It appears that Elena Kagan's critique of the confirmation process remains largely intact. The best opportunity for a change in the process evaporated when Kagan opted to follow precedent and refuse to address issues that might conceivably come before the Court, which, of course, eliminates pretty much anything we really want to know. Her testimony might give even the Democrats pause, considering the ease with which she was ready to accept as "settled law" even a 5-4 decision on gun control that came down on the first day of her committee appearance. It appears, however, that “settled law” means little more to her than “precedent.” Marbury v. Madison is settled law, except perhaps to Justice Scalia. For conservatives, Roe v. Wade is a precedent, a wrongly-decided case they certainly do not view as settled law. Democrats surely hope that a number of recent 5-4 cases decided by the conservative majority are not settled law, but have only a tenuous precedential value that could some day swing differently.

What is the rationale for not responding to questions on issues that might come before the Court? David Souter may have stated it best in his confirmation hearing:

If the judicial process is nothing else, it is a process in which in every court and on every issue that may come before a judge, the people who come before him can have a fair hearing . . . . a fair hearing requires a willingness of the court not only to listen, but genuinely to examine the position which the court is inclined at that point to take.
Anything which substantially could inhibit the court’s capacity to listen truly and to listen with as open a mind as it is humanly possible to have should be off-limits to a judge. . . . can you imagine the pressure that would be on a judge who had stated an opinion, or seemed to have given a commitment in these circumstances to the Senate of the United States, and for all practical purposes, to the American people?

In addition to the argument that nominees should avoid any appearance of having prejudged important constitutional questions, Senator Hatch has also argued that the Senate should avoid any “ideological inquisition” that might stir up political partisanship concerning the nomination. Guess which nomination that was, Bork or Kagan?

The argument in favor of the kind of exchange that Kagan advocated in her 1995 book review article is the right of the people and the need of the senators to know what kind of justice this nominee is likely to be. In 1981, Senator Denton told nominee O’Connor, "It is my earnest hope that your response will be neither broad nor bland, because I will base my single vote on those responses." Nineteen of Denton’s 23 questions dealt with abortion, and his futile attempt to draw O’Connor out on the topic would have produced a “No” vote from him, as promised, except he yielded to pressure from the Republican leadership and abstained in the committee vote and voted affirmatively in the full Senate.

The Senate has long ago reached a point of reasonable acceptance regarding the suitability of questions pertaining to a nominee’s constitutional and judicial philosophy. It has not yet reached a point at which the burden of proof has been laid on the nominee and the nominee’s supporters. That likely will not happen until some senator, some day, stands up to vote “No” on a nominee because of the nominee’s refusal to be forthcoming to questions from the Committee. Senator Specter may be ready to take that step.

Kagan v. Senate Judiciary Comittee

I can’t recall any Supreme Court nominee having written in advance on the nature of confirmation hearings, prescribing what that process should entail. (That may say more about my memory than reality.) In a 1995 book review (62 U.Chi.L.Rev. 919), Kagan asserted that “the Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.” Specifically, she argued that confirmation hearings should address a nominee’s judicial philosophy as well as how this philosophy might be applied in practice, “by evoking a nominee's comments on particular issues--involving privacy rights, free speech, race and gender discrimination, and so forth--that the Court regularly faces.

While this might be the ideal in a confirmation hearing, it typically fails to achieve that level of forthright and informative discourse. The president’s political opposition, whether it be in the Senate or among the advocacy leaders, is too intent on seizing any and all opportunities to frame responses into opposition bullet points that can excite public opinion which, in turn, can be leveraged to their financial and political advantage. Cognizant of the opposition strategy (in part because they’ve been there and done that) the nominee’s supporters are too intent on limiting the discourse so that it cannot generate sufficient fodder to arouse controversy and substantial opposition in the public sphere, perhaps jeopardizing the nomination.

The result is a rather strange dance of politics (closely resembling a loose canon), in which both sides refuse to admit that the process of evaluating Supreme Court nominees is driven by politics, except to note with some disdain that the “other side” is playing politics. In reality, of course, they are all engaged in politics, one strategy of which is to claim that you are not being political. The mere fact that the president gets to choose the nominee and the Senate gets to confirm or reject makes it political. There’s nothing wrong with that.

By admitting its political nature, the Senate and the nominee could actually begin to engage in the type of dialogue that Kagan envisioned for the process. Senators could oppose the nominee because they disagree with her political philosophy or her take on several key issues that have characterized the Court’s stormy history. Instead, we’ll have to hear the opposition assert that her lack of judicial experience is sufficient grounds for opposition, when apparently it was not for Louis Brandeis, Felix Frankfurter, Earl Warren, or William Rehnquist. Of course, those 19 months for Clarence Thomas was all that was needed to put him over the top, I suppose. We’ll also hear her characterized as a judicial activist, though only by those unable to see the activism of Scalia, Roberts, or others on the conservative wing of the Court.

What we need is dialogue that will permit us to perceive that this nominee has the intellect, the understanding of and ability to deal with significant constitutional issues, the integrity to faithfully interpret the constitution and laws as they understand them, and some sense about what that understanding is. As the number of closely divided Court decisions reveals, there are distinctly different points of view on any number of these principles. And it’s OK for a senator to decide his or her vote on agreement or disagreement with the nominee on this basis.