From border to Mueller, Barr faces challenges as attorney general
The partisans’ dilemma: Fix the court, don’t pack the court
The irregularity of the Supreme Court appointments process has been a problem since the founding of the Republic. Allocating substantial power based on the vagaries of the timing of deaths and retirements is no way to run a constitutional democracy. And the best solution on offer has been around for decades: a term limit on Supreme Court Justices of 18 years, joined with fixing the number of Justices at 9 and a regularized schedule of appointments every 2 years.
In the aftermath of Judge Brett Kavanaugh's nomination, the constitutional politics of Supreme Court appointments rage once again. Judge Kavanaugh's potential elevation could shift the Court's jurisprudence decisively to the right. The substantive stakes are as high as they have been in a generation: the fate of reproductive rights, voting rights, the limits of executive power, and much more hang in the balance. In the shadow of those grave consequences, some legal scholars and commentators have suggested that Democrats should "pack the court" by adding seats to the Supreme Court when they retake the Presidency and Congress.
But the reality is that once one party takes that step, it is virtually certain that the other party will respond in kind when it returns to power. If Democrats increase the size of the court to 15 in 2021, then Republicans will probably further increase its size to 21 or more when they return to power. And so on, and so on, and so on.
Rather than playing that ever-escalating game, both parties should recognize that this is the perfect time to cooperate on a constitutional amendment on judicial term limits that brings the Supreme Court appointments process into the 21st century.
The real challenge is actually making it happen. Constitutional amendments are exceedingly challenging to achieve even on issues with lower ideological stakes and when the parties' willingness to cooperate is much higher than it now is. With the continuing escalation of partisan polarization, it may seem less likely than ever that the parties could cooperate to solve the problem.
That understandable pessimism is a mistake. Precisely because the threat of endless escalation in court packing is now so salient, both parties should recognize the value of cooperating on a long-term solution over securing short-term partisan advantage. This is a perfect opportunity for centrist Senators like Jeff Flake, Lisa Murkowski, or Susan Collins to lead the way by making their vote to confirm Kavanaugh conditional on legislation or an amendment to fix the appointments process. Nothing could be a more fitting tribute to the late Senator John McCain, whose devotion to stable institutions recognized the destructive power of unrestrained partisan conflict.
The certainty of imminent escalation with no foreseeable stopping point offers a way out of this partisan version of the prisoner's dilemma, in which both sides would be better off cooperating, but each has an incentive not to. Before, a party in power had no apparent reason to sacrifice its short-term advantage of placing a life-tenured Justice on the Court. But now, with the risk of court packing so present and the threat of retaliation and escalation so certain, the partisan game looks critically different.
In this time of constitutional hardball about the courts, failing to pack the Court risks ceding the first-mover's advantage to the other party. But making that first move to pack the Court guarantees that the other party will re-pack when its turn comes. Each party will be certain - or as certain as one can be when it comes to law and politics - that the other party will pack and re-pack the court with ever greater numbers. And once the parties start packing the Court, there is no natural stopping point.
In these extreme circumstances, the only rational move for each of the parties is to agree to disarm. As a result, and perhaps for the first time, the parties' self-interested incentives point toward cooperating on a constitutional amendment. Judicial appointments reform through a constitutional amendment may thus be more attainable than it ever has been before.
Matthew A. Seligman is a Visiting Assistant Professor of Law at the Benjamin N. Cardozo School of Law at Yeshiva University. Follow him on Twitter @Matt_Seligman