Republicans are using long-forbidden tactics to chip away at judicial independence

Republicans want to turn the courts into a subsidiary of the GOP. They're starting to succeed.

Getty Images / Diana Ofosu
Getty Images / Diana Ofosu

Pennsylvania state Rep. Cris Dush (R) is prepared to destroy his state’s judiciary to preserve Republican control of Congress.

Last month, the Pennsylvania Supreme Court voted 5-2 to declare the state’s congressional maps unconstitutional — maps under which Republicans won 13 of the state’s 18 congressional seats even in years when Democrats won a majority of the statewide popular vote. In response to the court’s decision, Dush proposed impeaching and removing all five of the justices in the majority.

At least for the moment, Dush’s proposal does not appear to be gaining steam with his colleagues, or with the state’s Republican leadership. But that doesn’t mean Republican leaders are quietly acquiescing to the rule of law. Last week, lawyers for Pennsylvania Senate President pro tempore Joseph Scarnati (R) informed the state supreme court that Scarnati refuses to comply with a court order requiring him to turn over data the court needs to evaluate new congressional maps.

Ordinarily, when a party to litigation refuses to comply with a court order, judges have a very effective way to break this impasse. Courts can hold the recalcitrant party in contempt, impose escalating fines, and even jail an individual until they come around to the view that they should follow the court’s order after all.

But this power to hold individuals in contempt rests on the premise that courts are more powerful than the parties that would defy them. Dush’s impeachment proposal allows Republicans to flip the script.

Despite the fact that Pennsylvania is closely divided between Democratic and Republican voters, Republicans enjoy a two-thirds supermajority in the state senate, enough to remove a justice. If the state supreme court holds defiant GOP leaders in contempt, Republicans can retaliate with impeachment.

Even if no one is ever actually removed from office, the threat of an impeachment crisis places the rule of law on weaker footing.

The Pennsylvania GOP’s attack on the judiciary is hardly an isolated incident. While Pennsylvania Republicans ramp up for a dramatic clash with their state’s judiciary, Republicans in other states and in Washington, D.C. are quietly transforming the judiciary into a haven for conservative movement loyalists.

Forbidden tactics are on the table again

Steven Calabresi is one of the most influential people in America that you’ve probably never heard of.

A professor at Northwestern University’s law school and, more significantly, the chairman of the Federalist Society’s board of directors, Calabresi is one of the puppet masters behind the most influential legal organization in the United States.

As a candidate, Donald Trump pledged that his judicial nominees would all be “picked by the Federalist Society.” A Federalist Society executive acted “as Trump’s subcontractor on the selection of [Supreme Court appointment Neil] Gorsuch,” according to the New Yorker’s Jeffrey Toobin.

So Calabresi kicked off a firestorm last year when he offered a radical proposal to neutralize liberals in the federal judiciary.

In a memo that was briefly posted to a public website last fall and then taken down after it was widely criticized, Calabresi and a former student proposed doubling or even tripling the number of seats on the United States Courts of Appeals. These new appeals court judges would be joined by 185 new trial judges. And all of these seats would be filled by Donald Trump. Calabresi’s memo was not shy about one of its primary motives for such a massive expansion of the federal bench: “undoing the judicial legacy of President Barack Obama.”

For decades, court-packing — that is, expanding the size of a court for the very purpose of changing its ideological makeup — has been considered the ultimate nuclear tactic in a battle for control over the judiciary.

When President Franklin Roosevelt proposed adding six justices to the Supreme Court of the United States in order to neutralize a Court that frequently struck down progressive laws under dubious constitutional theories, it sparked immediate opposition from key lawmakers — and was widely considered a disastrous turning point for Roosevelt.

During a car ride back to the Capitol, after Roosevelt summoned congressional leaders to the White House to learn of the court-packing proposal, House Judiciary Chair Hatton Sumners (D-TX) announced to his colleagues, “Boys, here’s where I cash in my chips.”

Calabresi’s recent court-packing proposal also sparked swift opposition from many of his ordinary allies. Law professor Josh Blackman, an up-and-coming voice within the Federalist Society, wrote in the National Review that Calabresi’s proposal “is ill-considered and should be discarded.” Ilya Somin, a libertarian law professor who blogs at the influential Volokh Conspiracy, wrote that, if the ideas advanced in Calabresi’s memo “take hold, it will be a very dangerous development.” Even Judge William Pryor, a staunch conservative that Trump considered appointing to the Supreme Court, wrote that “there is nothing conservative — or otherwise meritorious — about this proposal.”

Yet while court-packing remains toxic enough to trigger real opposition within the Federalist Society’s fold, it was not objectionable enough to prevent court-packing efforts from recently becoming law in at least two Republican-controlled states.

At the end of 2016, Arizona’s Republican Gov. Doug Ducey got to add two new justices — Andrew Gould and John Lopez — to the state supreme court. Justice Lopez serves on the board of directors of the Federalist Society’s Phoenix lawyers chapter. Justice Gould’s political resume is a bit more ambiguous — he spent the bulk of his pre-judicial career as a prosecutor — but he agreed to moderate a Federalist Society event shortly after his appointment to the state supreme court.

Ducey made these appointments thanks to a bill he signed that increased the number of seats on the state supreme court from five to seven. Though this bill was initially opposed by the court’s existing justices, the state’s Judicial Council relented after the court-packing bill was coupled with a proposal raising judicial salaries. “Our caseload and population do not mandate more justices,” Arizona Chief Justice Scott Bales admitted in an op-ed supporting the combined courts bill. Nevertheless, Bales endorsed the bill in large part because, he wrote, “Arizona’s state judges are underpaid.”

The chief sponsor of the bill, meanwhile, let slip the calculation underlying this legislation during testimony before a Senate committee. “I’ll just candidly say if there were different person appointing” members of the state supreme court, Republican Rep. J.D. Mesnard admitted, “I might feel less comfortable” with the court-packing bill he was pushing.

Just months earlier, a similar drama played out in Georgia, where the “Appellate Jurisdiction Reform Act of 2016” added two new seats to the state supreme court and let Republican Gov. Nathan Deal fill both of them. One of the new justices, Nels Peterson, was an officer in Harvard’s Federalist Society chapter and served as a law clerk to Judge Pryor. The other, Justice Britt Grant, is a former Bush administration official that Trump named as a potential U.S. Supreme Court nominee. Grant also holds leadership positions within the Federalist Society.

When Deal proposed this legislation, Democratic appointees held four of the Georgia Supreme Court’s seven seats. Now, Republicans control the court.

Republicans are blocking their political opponents from filling court seats

Remember Merrick Garland?

Chief Judge Garland was the olive branch President Obama offered to Senate Republicans still mourning the death of conservative icon Justice Antonin Scalia. Indeed, Garland was so widely understood to be an ideological moderate that conservative Sen. Orrin Hatch (R-UT) invoked Garland’s name to taunt Obama while the former president was considering who to nominate to replace Scalia. President Obama, Hatch told the conservative site Newsmax, “could easily name Merrick Garland, who is a fine man.” But Hatch incorrectly predicted that Obama “probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.”

Nevertheless, Senate Republicans responded to this olive branch by kicking Garland in the teeth. Scalia’s body was barely cold before Senate Majority Leader Mitch McConnell (R-KY) announced that the Senate would confirm no one Obama nominated to fill his vacant Supreme Court seat. Republicans even refused to give Garland a confirmation hearing.

It was a kind of court-packing in reverse. Republicans effectively reduced the number of seats on the Supreme Court to eight until a Republican was in the White House. Then they increased the number back up to nine again. And they filled this vacancy with Neil Gorsuch, a man so far to the right that he makes Scalia look like Thurgood Marshall.

Nor was this case an isolated incident. Consider the past several years of Sen. Mitch McConnell (R-KY)’s tenure.

The motion used to break a filibuster in the Senate is called “cloture.” Although the number of cloture motions filed in a given Congress is not a perfect proxy for the number of filibusters attempted by the minority, it’s a pretty good one. And this proxy reveals a drastic spike in the rate of minority party obstruction the minute that McConnell became minority leader.

In 2013, when Democrats were in the majority, these widespread filibusters twice brought the Senate to a boiling point.

Up until July of that year, Republicans used the filibuster to stop Obama from appointing anyone to fill vacancies on the National Labor Relations Board (NLRB), and to prevent him from appointing the Consumer Financial Protection Bureau’s (CFPB) first director. Under a 2010 Supreme Court decision, the NLRB effectively ceased to function unless it had a quorum of at least three members, so much of American labor law would have become unenforceable if more board members were not confirmed. Similarly, the CFPB could not carry out many of its core functions until its first director was confirmed.

By filibustering Obama’s nominees, Republican lawmakers were effectively neutralizing large swaths of U.S. law enacted to protect workers and consumers.

After Democrats credibly threatened to nuke the filibuster in July of 2013, Republicans relented and nominees were confirmed to both the NLRB and the CFPB. But this peace only lasted a few months.

In October, another showdown arose over the United States Court of Appeals for the District of Columbia Circuit — a powerful court that is widely viewed as second only to the Supreme Court in its influence over key areas of U.S. law. The Republican members of the D.C. Circuit frequently used their position to undermine progressive laws and regulations. By 2013, however, there were three vacancies on the D.C. Circuit, and Obama’s three nominees would give the court a Democratic majority.

In a preview of the tactics McConnell would use to lock out Garland and confirm Gorsuch, Republicans filibustered all of Obama’s D.C. Circuit nominees. Then-Minority Whip John Cornyn (R-TX) admitted that he supported these filibusters because he did not want Democrats to “switch the majority” on the D.C. Circuit. Sen. Chuck Grassley (R-IA), the top Republican on Senate Judiciary Committee, even proposed eliminating the three vacant seats altogether. (It’s worth noting that Cornyn and Grassley both voted to confirm Trump administration lawyer Gregory Katsas to the D.C. Circuit when another vacancy arose under Trump.)

Faced with the prospect of losing their ability to confirm key judges, Senate Democrats chose to eliminate the filibuster for most judicial confirmations — effectively eliminating the minority party’s ability to veto judicial nominees.

Their victory was short-lived. Republicans took control of the Senate in 2015. In addition to blocking Garland’s confirmation, McConnell halted nearly all confirmations of Obama’s nominees to the U.S. Court of Appeals. In the final two years of the Obama administration, the Senate only confirmed two of Obama’s circuit court nominees — and one of these was a nominee to the Federal Circuit, a largely apolitical court that primarily deals with patent law.

That left Trump with a record number of vacancies when he entered office — vacancies that he promptly started filling with the leading lights of the Federalist Society.

A similar drama played out recently in North Carolina, with similar results. Although North Carolina is a fairly evenly divided state with a Democratic governor, aggressive gerrymandering gave Republicans supermajorities in both houses of the state legislature. Last year, North Carolina Republicans eliminated three of the fifteen seats on the state’s court of appeals to prevent Democratic Gov. Roy Cooper from filling them. Although Cooper attempted to veto the bill eliminating these seats, Republicans enjoy such substantial majorities in the gerrymandered legislature that they were able to override Cooper’s veto.

And then there’s a curious constitutional crisis that Gov. Rick Scott (R) plans to trigger as he leaves office in Florida.

Scott, who is term-limited, will leave office at midnight on January 8, 2019. Three of the Florida Supreme Court’s seven justices also leave office at the very same moment. Thus, while three vacancies are expected to occur within the next year, Rick Scott will no longer be governor at the very instant these seats open up.

Nevertheless, Scott announced in 2016 that he intends to appoint three new justices to fill these vacancies — vacancies that, again, will not occur until after Scott is no longer governor.

Worse, the state supreme court decided late last year that it cannot review the question of whether Scott or his successor is allowed to fill these vacancies until after Scott takes steps to fill them. That could potentially trigger a crisis where Scott names one slate of justices, his successor names another, and no one can agree on which set of justices is allowed to decide who is or is not a member of the state supreme court.

Maintaining control of the courts with hardball tactics erodes democracy itself

Democracy, Harvard scholars Steven Levitsky and Daniel Ziblatt write in their bestseller How Democracies Die, amounts to “a game that we want to keep playing indefinitely.” They warn that democratic governments depend on “forbearance” by elected officials. To keep a democracy alive, elected officials must agree not to take actions which are technically legal, but which violate common norms that ensure that the democratic game keeps going.

This is why hardball tactics to maintain political control — like court-packing, refusing to confirm anyone nominated by a sitting president, routine filibusters, and political impeachments — have historically been rejected by both major parties in the United States.

It’s not that you can’t win victories through those means. It’s that these efforts erode our democracy itself. And until recently, both Democrats and Republicans agreed that it was more important to keep American democracy alive than it was to, say, keep a president of the other party from filling a vacancy on the Supreme Court.

Now that the GOP has abandoned such norms of forbearance, Democratic lawmakers would be entirely within their rights to respond in kind the next time they control the government. A proportional response to the Gorsuch confirmation, for example, would be to add two new seats to the Supreme Court — one justice to fill the vacancy that should have been filled by Garland, and another to vote for whichever party Gorsuch opposes in every single case.

If Democrats go down that road, however, the future is likely to be bleak. As Ziblatt told the Washington Post’s Matt O’Brien, once one party abandons norms of forbearance, it is inevitable that the other “will eventually respond tit for tat.” And, when that happens, Ziblatt “can’t think of” of any nation that hasn’t fallen into a cycle of partisan retribution. Both parties will continue to escalate until one emerges as the permanent victor, and the voters no longer have a meaningful chance to choose their leaders.

That sounds awful. But, for Democrats, the alternative could be even worse. A world where Republicans play hardball and Democrats play beanbag is a world where democracy is replaced by total Republican dominance.

The way to stop this downward spiral is for Republicans to decide, once again, that they care more about keeping the game going than they do about scoring a few quick goals. For now, they show no signs of doing so.