Brown University

Court-packing: A United States “Frankenstate” and Constitutional Retrogression By Rachel Risoleo @ Brown University

Many have criticized President Trump since he took office last January, claiming he threatens the state of American democracy. Pundits, politicians, activists and voters alike have attributed this fear to populist rhetoric, provocative tweets, and the unapologetic appointment of grossly under-qualified political actors, among other things. Although many of these unorthodox actions are unprecedented, it remains unclear whether they contribute to the erosion of institutional democracy in the United States. However, there is no doubt that one potentially great threat to democracy has been both primed and executed under the radar over the past three years in the US: court-packing. During the last two years of the Obama presidency the GOP cultivated the ideal conditions for this to occur; President Trump has proceeded to make this threat a concrete reality. Court-packing is not an altogether new strategy in US politics. However, President Trump and the GOP have pushed the limits of US democracy in implementing this extreme court-packing strategy. Ultimately, the unprecedentedly extreme nature of the GOP and Trump’s court-packing strategy threatens to eliminate institutional checks and institutional heterogeneity. Both of which, when eliminated, are pathways that can lead to democratic backsliding, according to Aziz Huq and Tom Ginsburg.

In their working paper “How to Lose a Constitutional Democracy,” Huq and Ginsberg point to the “elimination of institutional checks” as one pathway to what they refer to as “constitutional retrogression.”[1] They additionally emphasize that “institutional heterogeneity within the government” is a necessary component of a functioning, liberal democracy.[2] Court-packing is certainly not new; however, the severe tactics employed both by the Trump administration and by the GOP Congressional regime pose new threats to these two hallmarks of liberal democracy. This multi-layered court-packing strategy may not be hurting US democracy in an concretely visible way, but it threatens to incite the “retrogression” outlined by Huq and Ginsberg all the same.

Ron Klain, former Chief of Staff to Vice Presidents Al Gore and Joe Biden, refers to this court-packing scheme as the “ongoing Trumpification of the courts.” In anticipation of a republican president-elect, the GOP Senatorial majority worked tirelessly during the last two years of the Obama presidency to block almost all of Obama’s nominees. Thanks to this calculated effort, Trump was left with an unprecedented number of judicial vacancies to fill when he was sworn in last January. This “Trumpification” is eerily similar to what Kim Scheppele refers to as the creation of a “Frankenstate;” the process by which politicians manipulate fundamentally democratic institutions to achieve fundamentally undemocratic ends.[3]

To illustrate the creation of a “Frankenstate,” Scheppele draws on the example of Viktor Orbán and the Fisdez party in Hungary; specifically, the way in which Fisdez manipulated democratic institutions to essentially eliminate checks the Constitutional Court had on the party’s influence. It is tempting to mentally isolate the creation of “Frankenstates” to far-off, younger, and less resilient democracies. However, President Trump, along with the GOP, has begun a strikingly similar transformation of the courts here, in the US.

But how similar are “Frankenstates” and the processes by which the GOP is consolidating the federal courts, really? Per Scheppele, this process uses perfectly legitimate, democratic processes and institutions to create new, undemocratic and “monstrous” ones. Is this true in the case of Trump and the GOP?

Perhaps unsurprisingly, President Trump’s federal court nominees have been disproportionately white, male, and conservative, according to a recent MonkeyCage report. As Klain’s “Trumpification” theory illustrates, this is no accident. The unusually large number of seats available to Trump nominees resulted from very intentional, strategic moves on the GOP’s part. Trump has capitalized on this opportunity and has appointed a record-breaking number of federal justices in his short tenure as President. Not to mention, most of these very conservative – and at times, unqualified – nominees are significantly younger than the nominees of previous presidents, meaning they will serve in these lifetime positions for far longer. If, per Huq and Ginsberg, heterogeneity is an indicator of healthy institutional checks, the trend of US court-packing is, indeed, troubling for democracy. However, an even more concerning consequence of this “Trumpification” of the courts are the long-term, democratic ramifications of the GOP’s “Frankenstate-like” ends.

President Trump himself has been unapologetically vocal about how his administration will “set records in terms of the number of judges,” claiming that “there has never been anything like what we’ve been able to do together with judges.” This is perhaps the most alarming of his hyperbolic statements because it is, most likely, true. However, this is not only due to the GOP’s premeditated approach of blocking Obama nominees to maximize the number of available seats on the bench. Since the Trump presidency began, there have not only been an unprecedented number of judicial vacancies (both available, and filled), but also the last two major limits on executive influence on the federal court composition – the filibuster and the “blue-slip” practice –  have also been eliminated.

The power of the filibuster on judicial nominations was eliminated in 2013, long before the Trump presidency began. However, one final check on the majority’s power to shape the judiciary remained until just recently, when Chairman of the Senate Judiciary Committee Senator Grassley ended the long-standing “blue slip” practice. The blue-slip practice has been in place in 1910, and has been an uninterrupted Senate norm since 2005. Essentially, it “gave Senators the ability to determine the fate of their home-state judicial nominations,” and effectively veto a home-state nomination if need be.

When the GOP eliminated the blue-slip practice, it essentially eliminated the final check on the Congressional majority – and, in the case of the current administration, on the executive – in appointing federal judges. In doing so, it has threatened to incite constitutional retrogression due to shifts within the judiciary branch dynamic. However, perhaps more alarmingly, the GOP has permanently manipulated democratic limitations to achieve undemocratic ends. Thus, the courts are at risk of retaining their “Frankenstate” nature in the long term.

 

 

[1] Huq, Aziz, Ginsburg, Tom, “How to Lose a Constitutional Democracy.” UCLA Law Review, Vol. 65 (2018).

[2] Ibid.

[3] Scheppele, Kim Lane. “European Forum: Threats to Democracy in Eastern Europe.”American Political Science Association Newsletter. (Winter, 2013).

1 Comment

  1. John Iacovino

    December 12, 2017 at 8:51 am

    The “Frankenstate” you explain is a grim reality of US democracy. This type of court-packing is as unprecedented in America as the GOP’s unwillingness to acknowledge President Obama’s nominations. Modern cases of court-packing have been overt (such as FDR’s attempts), and have typically been carried out unilaterally by the executive. The fact that the legislative branch has facilitated court-packing is worrisome. The US is not equipped to correct this violation of democracy by a party as a whole. Following the civil war, court manipulation occurred based on executive regimes, with Republicans packing to maximize their ability to pass reconstruction programs and to limit the power of President Johnson to block them. While this may have been good for the nation, it is nonetheless an example of a legislative majority making changes to the government that will not be easy to undo. The legislative branch needs some form of accountability in matters like this — rules must be changed to ensure that congress cannot continue to manipulate the Supreme Court in the future.

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