With the retirement of Anthony Kennedy the Supreme Court becomes the first conservative-majority one since the early Hughes if not Taft eras. Charles Evans Hughes at least had mild Progressive roots that gave moral strength to his canny political instincts (he and Louis Brandeis torched FDR’s court-packing scheme from the Court’s side); John Roberts was incubated in the Reagan administration, which means that besides a fealty to states rights and an executive branch untrammeled in national security matters Roberts believes, like Reagan and Mike Deaver did, in the appearance of things. To believe in the Supreme Court As An Institution requires preserving epochal decisions as Potemkin villages while a host of narrow rulings erodes their core and reach.
A Trump administration protected by a supine Congress and a cooperative SCOTUS has accelerated the atomizing of the Union. Citizens in liberal-leaning states can depend on their local elected officials and governors to preserve their essential liberties and everyday matters like access to health care and collective bargaining. Elected officials in conservative ones let their citizens die. Thanks to the latest, ah, jurisprudential directions, we’re reverting to a miscellany of states reminiscent of the Progressive or pre-Civil War era. Income inequality exacerbates this sense of every-man-for-himself.
I’ve seen a number of proposals floating around this morning about how to handle a Senate vote on Kennedy’s replacement. Here’s one:
Earlier this month, University of Miami political scientist Gregory Koger, a specialist in filibustering and legislative obstructionism, explained on Vox.com that, according to Article 1, Section 5 of the U.S. Constitution, “a majority … shall constitute a quorum to do business” in the Senate — meaning that Democrats can basically shut the place down by refusing to vote on anything.
With only the barest 51-vote majority — and one of their own, Arizona Sen. John McCain, on extended leave in Arizona as he grapples with what is likely to be terminal brain cancer — Republicans would have difficultly mustering a quorum without at least some Democratic help. “In the month of June, there have been an average of 1.8 Republican absences across 18 roll call votes,” Koger wrote, “so even if McCain returned to the Senate, the majority would struggle to consistently provide a floor majority.” If McCain doesn’t return, and all 49 Democrats refuse to participate, the 50 Republican senators left in Washington would fall one short of a quorum. (The Senate precedents on quorums do not mention whether Vice President Mike Pence could contribute a 51st vote.)
In that case, “the Senate can do nothing,” Koger concluded. “No bill can pass, no amendment can be decided on, no nominations can get approved.” The Senate would screech to a halt for lack of a quorum — and Democrats could conceivably delay a confirmation vote until a new Senate, perhaps with a narrow Democratic majority, is seated next January.
I’m unpersuaded. Can you imagine Mitch McConnell and the GOP senators taking credit for being the responsible party, the party that Wants To Get Things Done?
Meanwhile Alex Pareene, taking nineteenth century precedent as his lode star, wonders why the Court couldn’t conduct its business with eight justices:
And if there is no need for a ninth member, and if President Trump is not qualified to appoint one anyway, the way forward is clear: Deny quorum until everyone accepts the eight justice status quo. Senate moderates in both parties, including pro-choice Republicans Susan Collins and Lisa Murkowski, should be thrilled with an evenly balanced Supreme Court, with the four conservatives and four liberals being forced to find common ground, and persuade one another, instead of deciding things on nakedly partisan grounds. Anthony Kennedy has given centrists, and all who regret the incivility of the current moment, a gift, and it would be irresponsible to waste it by replacing him.
I have friends who are friends with Pareene, and I know him well enough to see the tongue in cheek (hell, many commenters took to heart his remarks about the moderateness of Susan Collins, Lisa Murkowski, and John McCain).
Back to calling Bill Nelson and reading Derek Walcott on my lunch break