Supreme Disorder
Ilya Shapiro, the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review, talks about his new book, Supreme Disorder.
Last week, I had Ilya Shapiro, the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, publisher of the Cato Supreme Court Review, and author of the new book Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court.
Click here to listen to our full conversation.
During our conversation, Ilya and I talked about Supreme Court history, past judicial nominations, and our current situation with Justice Ruth Bader Ginsberg’s seat vacancy.
Here’s a lightly edited excerpt:
Matt: Democrats are upset about what happened to Merrick Garland, and they feel like it's unfair. Some people think it's a stolen Supreme Court seat. Talk about the precedent of what is happening now, and what happened to Merrick Garland in 2016?
Ilya: Well, one thing I learned in researching and writing this book, Supreme Disorder was that there's really nothing new under the sun in the long course of American history with respect to the relationship of politics to judicial nominations. So, 10 times nominees were not acted upon, Merrick Garland was not the first. A couple of times they were what's called “postponed indefinitely.” Isn't that a great euphemism for an early senate procedural maneuver? And presidents have from the very beginning have had trouble filling seats. George Washington had a nominee rejected, and it's gone on from there. I mean, the politics has worked out in different ways. But really, the biggest determinant, whether an election years, or just generally, is whether the same party controls the White House and the Senate. This should be fairly obvious, but needs to be said, to put a finer point on it again, historically, in all of our history, when the party, the same party controls both the White House and the Senate confirmation rate is about 90%, and when it's separate parties, it's under 60%. So that's a big deal. And in election years that difference is even starker. There have been 29 times when a vacancy has arisen in a presidential election year, and all 29 of those times the President has made a nomination—we're about to have our 30th [this was said before Amy Coney Barrett’s nomination]. And the big difference, again, is united versus divided government. When the same party controls the White House and the Senate, 17 of 19 times, the nominee has been confirmed in that presidential election year. When different parties [control the White House and the Senate] only once out of 10 times—that was in 1888. So, Merrick Garland was not unusual. Knowing nothing else about the political circumstances or the year, or who the candidates were, one would have expected whoever the nominee was in 2016, not to have been confirmed because of the divided government scenario, and one would expect now in 2020, for the nominee to be confirmed again, knowing nothing else about what's going on.
Matt: I think the way that it went down with Merrick Garland is part of part of what created the problem with of course, the vacancy opening and during an election year with Trump was so it's obviously not unprecedented. I know John Quincy Adams had a nominee “postponed indefinitely,” but when is the last time the senate just decided not to act on a nominee?
Ilya: 1881.
Matt: So, you know, I mean, that's a long time ago. I mean, you understand why Democrats would be “it's not unprecedented”, but it's been a long time since this happened.
Ilya: But the last time that a nominee was confirmed by the opposing party was 1888. So it just doesn't happen that often. You can argue about precedent every which way again, but it's pure politics, it's pure political gamesmanship. And, you know, McConnell made a risky maneuver. Most people were not expecting Donald Trump to win that election. And Hillary Clinton was not promising to nominate Merrick Garland, she'd hardly mentioned his name on the stump. The presumption was you wanted to leave yourself room to appoint someone who was even more to the left. And so McConnell's play, make of it what you will, was by no means a certainty that he would thus guarantee a better for him from Republican perspective replacement for Scalia.
Matt: Yeah. True. Let's talk about the limit of the early day, early days. Um, so one thing I learned from this book, I tweeted this out was that, you know John Adams made a lame duck nomination. This may become more timely, if things get away from Donald Trump and Mitch McConnell. John Adams made a lame duck appointment that turned out to be pretty important.
Ilya: That's right. And after John Adams had a very bitter campaign against Thomas Jefferson, which he lost. And by the way, if you want to watch something really funny and unique, Google Adams Jefferson election campaign videos, they took, whoever produced this video took the actual pamphlets and speeches and rhetoric, I mean, talk about, you know, demagogic rhetoric and what have you nasty rhetoric that we have now? 200 years ago, if anything, it was even worse. Anyway, you have this campaign video. So Adams lost in the lame duck and the lame duck was longer then (the Inauguration Day was in March), he nominated and the senate confirmed to the Supreme Court, none other than Chief Justice John Marshall, the great chief who established the Supreme Court as an entity to be of serious note in our early republic. So, we have had lame duck nominations and confirmations before, including by Presidents who had just lost an election.