Amicus With Dahlia Lithwick | "The Case Against the Case Against Confirmation"

Episode Date: April 2, 2016
Host: Dahlia Lithwick
Guest: Professor Geoffrey R. Stone, University of Chicago Law School
Topic: The unprecedented Senate refusal to consider Merrick Garland’s Supreme Court nomination and its constitutional, historical, and political dimensions

Episode Overview

This episode delves into the political and constitutional standoff over the Supreme Court vacancy left by Justice Antonin Scalia’s death. With President Obama’s nomination of Merrick Garland stalled by Senate Republicans, host Dahlia Lithwick sits down with renowned constitutional scholar Geoffrey R. Stone to discuss the historical context, evolving norms, and deeper implications for the rule of law. The episode also examines the effect of advocacy groups on the confirmation process, the strained customs underpinning government, and the rarely addressed topic of justices’ religious influences on law.

Key Discussion Points & Insights

1. Unprecedented Senate Obstruction

• Historical Context of Confirmation Battles
  • Prof. Stone explains that the Senate’s blanket refusal to hold hearings or a vote on a Supreme Court nominee—regardless of the nominee’s merits or ideology—has no precedent in American history.

    “It's for all practical purposes, completely unprecedented to say we won't meet with this candidate, we won't hold hearings, we won't have a vote.” — Stone (02:45)

  • Even in eras of ideological swings and divided governments, qualified nominees received hearings and votes.

2. The ‘Lame Duck’ Argument and Constitutional Responsibilities

• Historical Mythbusting
  • Stone debunks the assertion that “lame duck” or final-year presidents shouldn’t fill Supreme Court vacancies:

    “Presidents have nominated and the Senate has confirmed new justices in the final year of a President's term... George Washington, Thomas Jefferson, Andrew Jackson... even Ronald Reagan.” — Stone (05:36)

  • Only rare exceptions existed, and those involved unelected presidents.
• Constitutional Mandate
  • The President is elected for four years, with all powers and responsibilities intact until the end of the term:

    “The notion that the President should somehow be denied the constitutional authority that is given to him ... in the last year is simply not at all supportable historically.” — Stone (06:57)

3. Advice and Consent: Text, Tradition, and Norms

• Is a Hearing Required?
  • Legally, the Constitution doesn’t mandate specific procedures, but over centuries “advice and consent” has come to mean hearings and votes for qualified, mainstream nominees.

    “If you nominate somebody who is way off the mainstream of legal thought, then the Senate is within its rights to say no... But if the President nominates someone who is well qualified and reasonably moderate, the tradition has developed that ... it is the responsibility of the Senate to hold hearings, to vote, and in fact, to confirm in those cases.” — Stone (09:05)

• Erosion of Norms
  • Lithwick notes, and Stone agrees, that disregarding long-standing customs can undermine the very basis of American constitutional government.

    “Norms are fundamentally what make a legal system operate.” — Stone (10:43)

4. The Role of Advocacy Groups and Political Machinations

• Weaponizing Ideological Litmus Tests
  • The process has become dominated by lobbying groups seizing on specific issues (e.g., gun rights, abortion) to demonize nominees:

    “The problem is Mitch McConnell is supposed to do his job as a member of the United States Senate, not be the agent of the NRA.” — Stone (12:28)

  • Democrats have historically confirmed conservative justices despite policy disagreements, while the current moment sees the process paralyzed by political brinkmanship and special interests.

    “If that were the test then we would not have had ... Antonin Scalia or Clarence Thomas or John Roberts ... Because members of the Senate would have said, well, they have positions we don't like, so we're not going to let them be on the Supreme Court.” — Stone (12:48)

• Media and Money
  • The rise in televised hearings, 24-hour news, interest group activism and enormous campaign spending (post–Citizens United) has deeply politicized confirmations:

    “Members of Congress are...much less willing to do their jobs in a responsible manner, and much more willing to do the bidding of their donors. And this is a very dangerous thing for the current state of democracy in the United States.” — Stone (14:25)

5. Constitutional Crisis and the Future of Confirmations

• Lithwick and Stone discuss whether the deadlock will end if the presidency shifts parties. Stone is pessimistic:

  “I didn't believe they would confirm any realistic Democratic nominee. I think that they will throw the nation into this kind of a complete chaos... they're so terrified of their interest group supporters...” — Stone (18:13)

• On Obama’s Nomination of Merrick Garland
  • Garland represents a moderate compromise, and Obama’s pragmatic approach stands in contrast to calls for a bold progressive pick:

    “This was a genuine effort...to find common ground...I'm taking a lot of heat from my more liberal supporters who think I should have gone with a more progressive nominee. But I think this is Obama being a reasonable person, which is what he is, in fact, and trying to get this done.” — Stone (24:23)

6. Practical Impact on the Supreme Court’s Functioning

• Effect of 4-4 Splits
  • Recent decisions (Friedrichs, Zubik) highlight the unsustainable nature of an evenly divided court:

    “No court is constituted in such a way to have an even number of Justices for the obvious reason that you don't want this situation to arise.” — Stone (21:31)

7. Religion, Bias, and the Supreme Court

• Stone’s Reflections on “Faith-Based Justices”
  • Stone recounts his experience expressing concern over justices’ personal religious convictions possibly influencing rulings on issues such as abortion:

    “I watched Justice Brennan address the conflict that he himself felt between his religious views about abortion and what he felt were his constitutional responsibilities as a Justice. ... I was really disappointed in Justice Scalia because we are friends and we have talked about things over the years.” — Stone (26:21)

• Why Religion is the “Third Rail”
  • Society hopes justices can separate personal identity from decision-making, but in practice, this can be complicated and contentious.

    “We like to imagine...justices decide cases based upon the law, and the law is not about what race you are, what religion you are, what ethnic origin you are, what gender you are...but we also hope that they're able to, in the end, separate themselves from those perspectives...” — Stone (30:50)

  • On Scalia:

    “My guess is if you looked at Justice Scalia's decisions…it would be very hard to find many that would not have come out in a way that a good Catholic would have wanted.” — Stone (32:26)

Notable Quotes & Memorable Moments

• On the unprecedented nature of the Senate’s blockade

  “It's for all practical purposes, completely unprecedented...and so far as they know, never in American history.”
  — Geoffrey Stone (02:45)

• On the Constitution’s intent

  “The President of the United States is elected for a four year term...The notion that the President should somehow be denied the constitutional authority...in the last year is simply not at all supportable historically.”
  — Stone (06:57)

• On the collapse of norms

  “Norms are fundamentally what make a legal system operate...you can walk away from the text of the Constitution as well. And you could choose to disregard Supreme Court opinions because you don't like them.”
  — Stone (10:43)

• On the effect of advocacy groups

  “This is a very dangerous thing for the current state of democracy in the United States. And it threatens not only this issue, but the whole legislative process as we've seen in recent years.”
  — Stone (14:25)

• On Obama’s approach to Garland’s nomination

  “I'm taking a lot of heat from my more liberal supporters who think I should have gone with a more progressive nominee. But I think this is Obama being a reasonable person, which is what he is, in fact, and trying to get this done.”
  — Stone (24:25)

Timestamps for Important Segments

• 00:49–01:20 — Mitch McConnell’s rationale for the blockade
• 02:20–03:17 — Precedents in Supreme Court nominations and ideological shifts
• 05:36–07:57 — Historical instances of final-year nominations and confirmations
• 08:23–10:10 — “Advice and Consent,” constitutional interpretation, and Senate responsibilities
• 12:12–13:31 — The influence of groups like the NRA on the confirmation process
• 14:09–15:34 — The rise of interest group power and politicization of confirmations
• 17:22–19:56 — What happens if the blockade continues into a new Democratic presidency
• 21:29–22:37 — Impact of the 4-4 split at the Supreme Court
• 23:28–25:13 — Why Obama chose the moderate Merrick Garland
• 26:12–32:38 — Stone’s reflections on justices, religious views, and legal impartiality

Conclusion

Geoffrey Stone and Dahlia Lithwick present a sobering picture of a constitutional mechanism under severe strain—not simply due to partisanship, but because of a more profound breakdown in shared norms and legal traditions. The episode provides rigorous historical and constitutional analysis, candid reflections on personal biases, and a plea for a return to responsible governance—making it essential listening for anyone concerned about the future of the American judiciary.