There’s been a lot of talk about how Sen. McConnell’s promise to push through a Trump replacement for the late Justice Ginsburg is an act of flagrant norm-busting. Consequently, liberals are already girding their loins to pack the Court if McConnell goes through with it.  But that raises two basic questions. First, what is the norm involved here in the first place? And second, what is the appropriate way for both partisan sides to play the cards they have been handed?

First, it is a little challenging to figure out exactly what norm McConnell would violate if he went through with confirming another justice before the election (or during the lame-duck). Everyone can scour past news reports and engage in close reading of various politicians’ past statements. There’s plenty of hypocrisy to dig up. There was, supposedly, once a norm about not approving a Justice in an election year, but that appears in retrospect—on all sides—to just be an effort to turn a temporary power position into a generalized norm. And even if there was such a norm, it is not obvious to me that it makes any sense. What’s wrong with considering a potential nominee in March of an election year? Or even July! What grand constitutional principle does that violate? Or even what standard of good governance? It may be that the purpose of having such a supposed norm is that it keeps potential nominations from being “politicized” by presidential politics. Still,  anyone who has been paying attention would have already noticed that we are pretty well past that by now. 

My opinion is that there is not, in fact, any actual, widely accepted and justifiable norm in place right now, in the sense of a common standard both sides recognized and felt bound to. But as citizens, we could certainly imagine what such a norm might be, and judge McConnell’s behavior accordingly. Two possible standards make sense by means of good democratic practice. The first is that the Senate shouldn’t make lifetime appointments during the lame-duck, at least if the balance of power has shifted in the election. Suppose voters have already repudiated the existing Senate majority’s democratic claim to govern. In that case, it is a bit much for them to entrench that power for decades through an appointment to the Court. That would not prevent McConnell from pushing through a nominee before the election (when the public could take the Senate’s actions into account on election day). Still, it would suggest that he should lay down his sword after November 3. 

Beyond that, I think there is a second justifiable standard. Supreme Court Justices have life terms (they shouldn’t, but that’s a matter for another day). Unlike even very consequential acts of legislation, there’s no going back. That puts a heavy obligation of deliberation upon the Senate. There needs to be time to thoroughly scour the backgrounds of nominees (something that was, to underestimate considerably, a matter of some consequence in the case of Justice Kavanaugh). There needs to be time for the broader public, including interest groups, think tanks, law professors, and committee staff, to go through their public statements and judicial decisions. There are only six weeks between now and election day, which is shorter than any confirmation period in recent decades. 

Now, perhaps those recent confirmations were conducted in a more leisurely manner than was strictly necessitated by the need to provide advice (which optimally should be an actual process of offering input into the president’s decision-making before a nomination is made) and informed consent. When decisions are made without a deadline, consideration of a nominee might be stretched out to accommodate the Senate’s other business. Maybe it could be hurried up a bit, although the fastest recent confirmation, that of Ginsburg herself at 50 days, was expedited by the fact that she was such a deeply known commodity. But at the least,  Senate Judiciary Committee members need to be able to focus on the nominee with some degree of concentration. Consider, however, that the Senate Judiciary Committee chairman is in the middle of a very highly contested re-election contest in South Carolina. The confirmation decision will not exactly have his undivided attention. The same goes for other Judiciary committee members who will be highly engaged for the next six weeks, including Senators Kamala Harris (running for VP), Joni Ernst, Thom Tillis, and John Cornyn. And on top of the election, the Covid crisis means that the Senate is not exactly hitting on all cylinders. 

Therefore, the norm that citizens should apply to this question is not the bogus “year before the election” standard, but the fairly objective one of whether the Senate will have time to seriously conduct its constitutional obligations. Had Justice Ginsburg passed away this summer, McConnell would have been on reasonably firm ground, substantively, in filling the seat with a Trump nominee. But it is hard to see how anyone can seriously believe that the Senate can do a credible job between now and November 3. The norms that we citizens should apply—and that Democrats would be justified in applying, and holding to in future cases—are the substantive ones of sufficient time for thorough deliberation and not confirming nominees to Supreme Court seats during the lame duck when control of the chamber has changed in the foregoing election.

A norm is meaningless without enforcement. As Ian Millhiser and others have argued, the only possible tool that Democrats have to enforce norms around judicial nominations (which should be the substantive one sketched out above, not the fictive one that they are currently suggesting McConnell is violating) is to credibly commit to pack the court in 2021 if the Republicans go through with confirming a Trump nominee. There are many on the left of center who were pushing for court-packing before this unexpected opening came to pass, as punishment for the supposedly ill-gotten gains of the Kavanaugh and Gorsuch seats. Theirs is an understandable position. But what is being proposed now is something rather different, that is independent of the previous case. In the short term, it is simply about whether the Democrats should threaten court-packing in order to keep the Republicans from filling the Ginsburg seat. 

If they can do so credibly, I think the Democrats should make such a threat, and if the Republicans can fill the seat, they should go through with it. I say this even though I think that there really is a norm—one that was tested under FDR, no less—that the Supreme Court has nine members. Obviously, it did not in all our history, but we are now basically a century into the world of nine-member Supreme Courts. Court-packing would lead to unstable counter-packing and counter-counter-packing cycles, which would snap what little is left of the Court’s reservoir of legitimacy. But there is no way to uphold the legitimate norm that the Senate should provide adequate advice and consent—a serious constitutional obligation—without making the only threat available.

Ilya Somin has proposed that Dems offer to forswear court-packing, in exchange for McConnell holding back from confirming any nominee until after inauguration day (which would obviously not happen if control of the Senate flipped). The complicated matter is that both the Democrats and the Republicans are currently in a considerably uncertain situation. First, the deal that Somin proposes only makes sense if McConnell could, in fact, get a nominee confirmed, and if the Democrats could credibly threaten to pack the Court if he does. But I increasingly think that both of those predicates are uncertain. 

McConnell has only the narrowest possible margin for error. He has 53 Republicans, and two (Collins and Murkowski) have given strong commitments (as much as any politicians do) not to vote on a nomination until after inauguration day. Sen. Romney’s support for confirming a Trump nominee before inauguration day seems shaky, and…well, he voted to remove the president earlier this year. That would give McConnell only one vote’s margin of error. He has to be worried that even his powers of institutional magic are not that strong.  

On the other hand, for the Democrats’ gambit to work, they would need to be able to credibly threaten to put four Biden nominees onto the Court, putting Republicans in a worse position than if they did nothing at all. Can they? I doubt that there are currently 50 potential Democratic Senators who McConnell or the rest of the Republicans could be certain would actually go through with such a threat. Is there anyone who could be certain that Jon Tester, Joe Manchin, Kyrsten Sinema, John Hickenlooper, Mark Kelly, and Chris Coons will take this jump into the unknown?  

One way to think about this situation is that it is, in fact, the ideal circumstances for a deal along the lines of what Somin is proposing. Each side knows that it holds fairly weak cards. On the one hand, McConnell would probably value a Democratic commitment not to pack the Court, as implausible as the threat may seem now. And Democrats would strongly value not having the Ginsburg seat filled before inauguration day, even though they might think that McConnell will not be able to prevail in a confirmation battle. 

Agreeing to fold simultaneously and hold onto their chips makes a certain logical, strategic sense. And in doing so, we would go some ways toward converting some of our gauzy norms into something like durable rules.

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