Republicans stole a Supreme Court seat -- and that may be the most overlooked reason why Donald Trump is president today. That alluring possibility was clearly the main reason why so many Republicans stood by Trump (or at least held their tongues) even in the worst days of the 2016 campaign, after the "Access Hollywood" tape surfaced.
Of course the theft wasn't legally defined as such, nor was it unconstitutional. But never before have senators of one party refused even to consider a Supreme Court nominee, effectively robbing one president of his appointment power to give it to another. Some Republicans openly considered holding the seat open indefinitely, had Hillary Clinton been elected.
Welcome to the land of “constitutional hardball,” meaning things a judge might let you get away with under the Constitution, but that your mother never would.
Harvard Law professor Mark Tushnet, who coined the term (here), delicately defined it as “political claims and practices ... that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings.”
Tushnet and other legal scholars who have written about constitutional hardball typically view it as something everyone in American politics does — he has described examples of both Democrats and Republicans engaging in it. But political commentators such as David Waldman, Matt Yglesias, Jonathan Bernstein and myself have seen it as something Republicans do far more often and intensely than Democrats, in line with the well-documented phenomena of asymmetric polarization.
Now a new paper in the Columbia Law Review makes a rigorous argument supporting that broader view. “Asymmetric Constitutional Hardball,” by Joseph Fishkin and David Pozen, points to a preponderance of examples on the right, advances a powerful multi-causal explanation for why conservatives engage it in more than liberals, and introduces some key concepts to help deal with points of confusion.
Perhaps most important, by clearly establishing the asymmetry involved, Fishkin and Pozen's work provides a much-needed foundation for reorienting center-left “good government” types toward a systemic focus on underlying problematic issues, rather than continued knee-jerk denunciations when progressives belatedly push back against much more aggressive hardball tactics from the right.
“While the academic legal literature generally continues to treat constitutional hardball as symmetric or to ignore its partisan distribution, the idea of asymmetric constitutional hardball has become increasingly familiar (if seldom analyzed in depth) outside the legal academy,” Fishkin and Pozen write. “Hence the motivation for this Essay: to deepen these ongoing conversations and to spark a new scholarly conversation about this asymmetry, its causes, and its implications for constitutional law and politics.”
Those outside the academy should pay attention, too: this essay enormously clarifies a previously confused and under-appreciated dynamic that has a tremendous impact on the breadth of American law and politics. As pointed out at several points in this essay, key conservative political actors — from the Federalist Society to the Koch brothers' network — have long been intensely focused on just this sort of political struggle. Progressives cannot be expected to win battles in which they do not even show up, or at best bring a yogurt spoon to a nuclear war. And well-meaning “good government” types repeatedly do more harm than good as they reinforce a situation of one-sided disarmament.
“Since at least the mid-1990s, Republican officeholders have been more likely than their Democratic counterparts to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings,” Fishkin and Pozen write in their paper’s abstract. “Both sides have done these things. But contrary to the apparent assumption of some legal scholars, they have not done so with the same frequency or intensity.”
The record they cite is impressive, from the government shutdowns of 1995 and 1996 to the impeachment of Bill Clinton, to voter suppression efforts beginning in Florida in 2000, to the Bush v. Gore litigation and decision, to mid-decade redistricting plans developed in Colorado, Georgia and Texas after the 2002 elections, leading to the 2010 REDMAP plan, and much more. It only became more extreme during the Obama administration. “From its very first months,” they quote Matthew Yglesias writing in 2015, “Obama’s presidency has been marked by essentially nothing but constitutional hardball.” In a footnote, Fishkin and Pozen cite a Politifact analysis, based on Congressional Research Service data, that while less than one judicial nominee per year, on average was subject to a cloture filing in the 40 years before Obama took office, from 2009 to 2013 that average jumped to more than seven per year.
Democrats certainly have resorted to constitutional hardball as well — not just in this time period, but earlier too. During this period, however:
[W]hen Democrats have played hardball, they have been more diffident and apologetic about it. During the Clinton and Bush years, Balkin has argued, Democratic constitutional hardball largely arose out of, and responded to, “the Republican Party’s desire to cement a lasting conservative political order.” President Obama’s most controversial maneuvers were framed and defended as regrettable yet necessary acts of “self-help” in the face of extraordinary partisan obstruction. Republican constitutional hardball, it seems, has been not only more common in practice since the 1990s but also more confident in justification.
A Complex Multi-Level Picture
While the phenomenon described is related to political polarization, it’s both more complicated and less easy to quantify. “Asymmetric constitutional hardball is not the sort of phenomenon that can be modeled in a neat, monocausal manner,” the authors warn, and “potential factors … are interlocking elements of related causal stories.”
Asymmetric constitutional hardball grows out of historically conditioned differences between the parties’ electoral coalitions, mediating institutions, views of government, and views of the Constitution itself. The "restorationist" constitutional narratives and interpretive theories promoted by Republican politicians and lawyers, the Essay suggests, serve to legitimate the party’s use of constitutional hardball.
Right and left, Republicans and Democrats, differ at every level in interacting ways. Individual Republicans are more likely to be conservatives than Democrats are to be liberals, and they’re more likely to support hardball tactics. The same is true of elected officials, and this is further reinforced by the nature of the two parties, as well as associated activist organizations, think tanks and trusted media sources.
This multi-causal, multi-level explanation is significantly similar to the argument presented in "Asymmetric Politics: Ideological Republicans and Group Interest Democrats," by Matt Grossmann and David Hopkins (Salon review here). Indeed, the ideological nature of the GOP strongly supports an inclination to play hardball, and thrives on conflicts it chooses to promote — as with the flood of anti-gay marriage initiatives in the 2004 election — while the more diversified Democratic coalition depends on orderly, civil, rule-based processes to strengthen trust among its diverse members.
When I queried the authors about the similarity of these analytic approaches, Fishkin agreed. “Our view of the structural differences between the two party coalitions is highly overlapping with the collective view of a number of political scientists, with Grossmann and Hopkins prominent among them,” he said. “Our focus is different in that we are interested in a particular form of political behavior – constitutional hardball – and the incentives and motivations that surround it. Because of our different focus, we end up emphasizing some pieces of the story that a political scientist might not, including the two party coalitions’ rather different views of the Constitution itself."
Reciprocal But Not Symmetrical
While both Democratic and Republican officeholders play constitutional hardball at times — with one side’s actions often triggering the other — this reciprocal process can be misleading. “Constitutional hardball remains reciprocal but not symmetrical,” Fishkin and Pozen argue. “One party, the Republican Party, has become especially identified with hardball tactics, with large consequences for our constitutional system.”
This concept strikes me as central in clarifying the situation: It acknowledges that “both sides do it,” but also that they tend to do it differently, in different amounts and intensity, and for different reasons.
“In many contexts, Pozen said, "it will be a logical fallacy to assume that just because a social or political practice is reciprocal, in the sense that both sides participate, it must also be symmetrical, in the sense that both sides participate in the same way. I get the sense that some observers of constitutional hardball may have noticed Democrats getting into the act and conflated reciprocity with symmetry. Others may not have wanted to touch the symmetry/asymmetry issue because they find it hopelessly ‘political’ or because it is so difficult to measure. For whatever reasons, legal scholarship has been surprisingly quiet on the question of constitutional hardball's partisan dimensions.”
Because the implicit belief in symmetry is so strong — with the added convention of treating both sides equally regardless of evidence — it’s important to grasp the strength of evidence to the contrary. There are four reasons the authors give why an asymmetric account makes sense. First, certain GOP hardball tactics haven’t migrated over to the Democratic side, while Republicans have readily used Democratic tactics when given a change. Specifically:
- Democrats have not threatened credibly to default on the national debt.
- They have not enacted measures likely to suppress Republican voter turnout in federal elections.
- They have not fired their own hand-picked Senate parliamentarian in an effort to overturn rulings that displeased them.
- They have not appointed agency heads known to oppose the agencies they will be leading.
- And they have not they impeached a President.
Second comes the post-1980 backdrop of asymmetric polarization, with Republicans moving much more strongly to the right than Democrats have moved to the left.This is true for rank-and-file voters as well as party elites, and can be observed in public polling data as well as congressional voting patterns. Survey evidence suggests that Republicans are strikingly more likely than Democratic partisans to reject consensual politics in principle.
Since constitutional hardball depends on political actors with strong substantive views eschewing compromise in order to advance those views, these differences in the parties’ attitudes seem illuminating. They suggest an overarching reason why constitutional hardball tactics would tend to hold greater appeal and less downside for Republican officeholders.
These all reflect tendencies, not reductionist causes. But the tendencies all point in the same direction.
Third, following the formulation of "Asymmetric Politics," the authors find “considerable evidence that the modern Republican Party acts more like a movement party, with clear and cohesive ideological goals, while the Democratic Party acts more like an amalgamation of interest groups.”
Fourth, “differences in the constitutional philosophies of liberals and conservatives suggest different normative orientations toward constitutional hardball.” For example, Republican commitment to the theory of originalism and the idea of a “lost” Constitution are apt to yield considerably less deference toward the constitutional status quo and the set of unwritten norms that have evolved to facilitate moderation and cooperation in government. Democrats’ comparatively dynamic understanding of a "living" constitutional order, in contrast, gives them a general reason to view destabilizing constitutional hardball tactics with suspicion. They may engage in such tactics anyway, but the effort will involve greater cognitive dissonance.
The question of why officeholders would be asymmetrically disposed toward playing constitutional hardball can be answered in two ways. First by looking at incentives and constraints, which ties back into the kind of analysis found in "Asymmetric Politics." Fishkin and Pozen write that while both parties “face political pressure to play constitutional hardball, such pressure has been considerably stronger and more systematic on the Republican side.”
Why is such pressure stronger among Republicans? That leads to the second way of answering the question, at the level of ideas and values. While both parties are somewhat ideologically diverse, “substantial segments of their coalitions hold identifiable clusters of beliefs that are part of what makes the coalitions cohere,” and the differences in those clusters drives asymmetry.
Some Broader Views
David Hopkins, the co-author of "Asymmetric Politics," weighed in with further observations.
The asymmetry that Fishkin and Pozen describe is at least partially a manifestation of the view that conservatives can’t really afford to "play nice" in the political system, because experience suggests that they are unlikely to prevail under the existing sets of norms. Liberals, for all the short-term defeats and failures they may face, still have more of a sense that history in general is moving in their direction. If respecting existing norms has brought us to this point, it’s hardly a surprise that liberals and Democrats retain more devotion to these norms than conservatives do.
One thing that liberals don’t always recognize is the deep frustration and even sense of emergency that permeates much of American conservatism, especially during periods of Democratic rule at the federal level. For all its electoral successes over the past 40 years, the American conservative movement has still made little progress on its central project — reducing the size and reach of the government, especially the federal government — while larger social and cultural trends during this period have, on the main, proceeded on a liberal trajectory.
For a book-length perspective on this last point, see "Why Liberals Win the Culture Wars (Even When They Lose Elections)" by Stephen Prothero. Fishkin and Pozen take up this theme in a section called “Existential Politics,” in which they write:
Constitutional narratives of debasement and restoration are consonant with a broader type of narrative in contemporary conservative politics: a story that something has gone fundamentally awry in the republic, on the order of an existential crisis, and that unpatriotic liberals have allowed or caused it to happen. We use the phrase type of narrative because it is not a single story.
Whether it’s the growth of big government, the erosion of traditional values or increased racial and ethnic diversity, whatever most concerns a particular conservative, there’s some narrative of this type that seems to fit their needs, makes sense of what has gone wrong, and lays blame on liberals for supposedly subverting what the Founders intended. The intensity of felt threat helps bind them together, and justifies extreme measures such as those involved in constitutional hardball.
“Existential politics is not genteel,” they go to say. “If enough of an elected official’s supporters conceive of politics in existential terms, the fact that a particular tactic flouts constitutional conventions or settled constitutional understandings may count in its favor.” Trump is not alone in this respect.
Another point Hopkins makes underscores a major source of ambivalence on the liberal side.
There is a significant and often-influential set of actors within the Democratic-liberal coalition that care a lot about process, about "following the rules," about democratic norms, transparency, precedent, public integrity, and so forth. Common Cause is a good example. “Good government" is not inherently a virtue of the left more than the right, but in practice these actors have more power over Democrats than Republicans, in part because Democratic voters and activists have better internalized their arguments.
These actors and groups are not blind loyalists; they are perfectly willing to criticize liberals who violate their standards. So when Democratic politicians do things that depart from "good government" practices, such as enacting ambitious gerrymanders or manipulating campaign finance laws, they attract condemnation from within their own political coalition. Whereas Republicans are by and large criticized much more from within their own ranks for not being aggressive enough in pursuing their ideological goals.
Unanswered Future Questions
The sharply differential impact of “good government” arguments constitutes part of larger key dilemma a discussed in the paper’s concluding section, “The Future of Constitutional Hardball — and the Republic.”
There the authors argue that the factors driving asymmetric constitutional hardball point to its continuation beyond the Trump administration, not least because “the two party coalitions seem set to retain their views of the constitutional order.” Trump may have made liberals more receptive to existential politics, they note, but the alarm is not generalized to the Republican Party, and “It lacks the Manichean quality of the existential alarm that has been directed at Democrats, and is therefore less apt to prove durable.”
Further changes could alter things, but, “even if they were able to ramp up the practice of constitutional hardball in the medium and long run, it is not obvious to us that it would be wise for Democrats to do so,” the authors write, pointing to “two basic game-theoretic models for the interaction between the parties’ approaches to constitutional hardball.”
The first model says that Democrats’ failure to respond in kind drives Republicans to act more aggressively, since they face no significant penalty. “This first model suggests that greater Democratic constitutional hardball would ultimately lead to an equilibrium with less Republican constitutional hardball,” they explain. But the second model says that a tit-for-tat retaliation has no prospect of ever ending.
Compelling arguments can be made in favor of either of these models. What they really point to, in my estimation, is the need for developing a more robust constitutional position and narrative to argue from — one that can both support constitutional hardball tactics and limit them at the same time. As Tushnet wrote last year, “If you think you're playing an iterated game and your opponent thinks otherwise, you are (to use a technical term) a booby. The strategies you use -- in particular, refraining from tit-for-tat responses -- will be completely ineffective.”
For example, he has suggested abandoning the constitutional norm setting the Supreme Court's size at nine. "Democrats should be thinking about the possibility of expanding the Court's size to 11 as soon as they get the chance (if they ever do)," he wrote. "The rationale is not ... to 'seize control of the judiciary.' Rather, it is to undo the Republicans' theft of the Garland seat." In effect this would offer a new norm: The proposal that you can't steal a Supreme Court seat and expect to get away with it.
In short, liberals need to find ways that combine forceful actions with stabilizing ends — much as Martin Luther King Jr. explained the moral and strategic rationale of nonviolent civil rights activism in his famous "Letter From Birmingham Jail." Rather than being an assault on civil order, that is a kind of rescue mission, King explained: “Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue." Taking a cue from that historic text, liberals need a robust framework of constitutional principles, narratives and civic practices and more that support such a balance of disruptive means towards equitable ends.
One element in doing that could be the development of a "liberal restorationist" narrative regarding the U.S. Constitution. As Fishkin and Pozen write, "The 'restorationist' constitutional narratives and interpretive theories promoted by Republican politicians and lawyers ... serve to legitimate the party’s use of constitutional hardball."
I asked the authors by email whether it was necessary for liberals to make more forceful arguments about the nature of the Constitution itself, as a "living" document?
Pozen responded that this question is compatible with the work of "liberal originalist" scholars like Jack Balkin, author of "Living Originalism." Balkin argues that both the constitutional text and its evolving application, understanding and meaning need to be considered in an integrated fashion. Failure to do so feeds into an inherently sclerotic debate, in which liberals are handicapping themselves. As he explained to Armando at Daily Kos:
When liberals shy away from [originalism] because they think that's what conservatives do, they basically fight over the meaning of the Constitution with one hand tied behind their back. ... What's in it for liberals [to fight for "living originalism"]? It allows them to claim that the Constitution belongs to you. It's not something that just belongs to people who dress up in tricorner hats and appear at Tea Party rallies.
Fishkin responded more from the perspective of driving imperatives.
About the question of whether the "restorationist" narrative mode will switch sides, I’m tempted to say: ask me again in 10 or 20 years. If the Supreme Court moves far enough to the right in the next decade or two, we could certainly find ourselves in circumstances that would scramble many of the dynamics described in our article. Conservatives might focus on defending precedent, while liberals look to enduring constitutional meaning as a way to argue for overturning current precedent they thought illegitimate. We may well get there, but it will take a long time, and we are not anywhere close right now.
I also raised the argument advanced in George Fletcher’s "Our Secret Constitution: How Lincoln Redefined American Democracy," which argues that the Gettysburg Address and the Civil War amendments essentially form the core of a hidden "second Constitution." It was based on "organic nationhood, equality of all persons, and popular democracy,” was born from the need for redemption under law, and is historically parallel to France's Napoleonic Code, created in the aftermath of the Terror, and to Germany's Basic Law, developed in the aftermath of World War II and the Holocaust. Fishkin hasn’t read Fletcher’s book, but is sympathetic to its argument.
I am one of those people who thinks Americans in general seriously underestimate the extent to which the Civil War and the Reconstruction Amendments brought us a new constitutional order — a second Founding. It is certainly important for progressive constitutionalists to think about and make use of the legacy of what Reconstruction meant as we formulate our own contemporary arguments about liberty and equality, federal power, and other constitutional topics.
I don’t think looking to the past in this way necessarily takes on a “restorationist” character – the idea is not that the Radical Republicans of the 1870s were right in all the particulars, and the Court today just needs to listen to them. Instead I think the right set of moves involves pointing out the aims of Reconstruction, at a high enough level of abstraction that they are relevant to the present.
It’s an excellent point, but what I had in mind — it’s always there, really — is Langston Hughes’ poem “Let America Be America Again,” his evocative restorationist claim on our national promise, in stark contrast both to its deeply troubled history and the glorified misrepresentation that so many hold dear:
America never was America to me,
And yet I swear this oath--
America will be!
The issues raised in “Asymmetric Constitutional Hardball” — and the forward-looking questions it produces — may seem theoretical or abstract. Hughes brings them solidly down to earth, when he writes of all the different life struggles joined, “the poor white, fooled and pushed apart/ the Negro bearing slavery's scars/ the red man driven from the land/ the immigrant clutching the hope I seek” and the fight for a shared restoration of the dream. It will not be constitutional lawyers and law professors who ultimately save us, Hughes reminds us. But they have a crucial role to play in clarifying how that struggle will unfold.