What Do We Call Options Worse Than “Nuclear?”

The dangerous corrosion of institutional norms keeps getting worse.

Remember when the Democrats’ move in 2012 to partially curtail the use of the Senate filibuster was called the “nuclear option?” I fear the blogosphere will soon be tasked to generate hyperbolic epithets yet more cataclysmic. Compared to the partisan conflagration the Scalia succession fight stands to set off, the 2012 reform may not even count as a “dirty bomb.”

Despite each side’s deployment of constitutional rhetoric, what is going on now is not a dispute about applicable law. President Obama has the indisputable discretion to nominate a potential new Justice. The Senate has its own undeniable discretion to oppose presidential nominees.

What is happening is a dispute over norms – some call them “conventions” – which are the unwritten, but mutually accepted ways of doing business that allow parties and institutions in conflict to work together in spite of conflict. Thirteen years ago, I wrote a law review article decrying what I saw then as a dangerous corrosion in those institutional norms that had enabled frequently divided government to nonetheless achieve great things in the United States between the end of World War II and the late 1970s. Matters since then have grown much worse.

A president with 11 months to go in his term could reasonably expect, based on well-established norms, that the act of nominating a Supreme Court Justice will be viewed as a routine and wholly appropriate fulfillment of his duties. A president could reasonably expect the nominee to receive a hearing. Senate opposition on grounds of judicial philosophy rather than credentials might well be predictable also, but the legitimacy of a nomination and the expectation of a full hearing would seem to be unquestionable. The assertion by Senate Majority Leader Mitch McConnell (R-KY) within hours of Scalia’s death that “this vacancy should not be filled until we have a new President,” immediately threatens to explode these norms.

If the Republicans make good on that threat, how could the interbranch conflict become more inflamed? Here are three possibilities, each fit for an Aaron Sorkin screenplay:

Intersession Recess Appointment. Between the end of the 114th Congress in December, 2016 and the convening of the 115th in January, 2017, President Obama could make a recess appointment to the Court and bypass the Senate altogether. In its 2014 Noel Canning decision, the Supreme Court held that periods of adjournment within sessions of Congress – for example, when the Senate goes home for the Fourth of July – have to be at least ten days long to permit the president to make such an “intrasession” recess appointment. The Republican Senate majority will no doubt keep all its adjournments shorter than ten days. But the Supreme Court has never had to adjudicate whether the 10-day rule applies between different sessions of Congress. (Noel Canning dicta suggest the answer would be affirmative, but dicta are not binding.) An intersession recess appointment would not violate the constitutional text – Justice Scalia would be proud.

President Clinton 45 Forces Adjournment. Imagine alternatively that the Senate Republicans stonewall, President Obama does nothing, Hillary Clinton wins the presidency, and the Democrats retake the Senate. But the Democrats lack the votes to cut off debate for a Clinton nominee. The Democrats could eliminate the filibuster altogether – call it the Bubonic Plague option. Or they could try to adjourn the Senate for at least ten days to give her a recess appointment window – which the Republicans could block.

How could House Republicans block a ten-day Senate recess? Just as they did in 2011, House Republicans could use their obscure, but explicit Article I, Section 5 authority to refuse consent to any Senate adjournment longer than three days. If the Senate were to comply, President Hillary would be stymied, but defiance could erupt!

How? Senate Democrats could insist that the House block was itself unconstitutional unless the House also remained in session, which the House might not be willing to do. Or Senate Democrats might adopt a resolution insisting on their right to adjourn on a date to which the House objects. This would trigger the newly elected President Clinton’s obscure, but explicit Article II, Section 3 authority to “adjourn [Congress] to such Time” – presumably at least 10 days distant – “as [s]he shall think proper.” She could thus force open a window for a constitutional intrasession recess appointment. Shall this be called the Matter-Antimatter Collision Option?

The [Senate] Force Strikes Back. Republicans could still take revenge. An HRC Supreme Court recess appointee named in 2017 could serve to the end of 2018, that is, the end of the Senate’s “next session.” Imagine, though, that she makes such an appointment and public sentiment runs so negative that the Republicans successfully filibuster her permanent nominee and retake the Senate in 2018. Any 2019 recess appointment would again expire at the end of the Senate’s “next Session,” but only tradition determines that a “session” lasts for close to a calendar year. So, anticipating a further Clinton recess appointee in 2019, a GOP-led Senate (should it still exist) could exercise its Article I rulemaking power to re-define a Senate “session” to last only a week at a time. Hillary could make her appointment; the lucky appointee would serve only for the duration of a recess plus one week.

And so on.

My point is this: Both Democrats and Republicans know that the norms of interbranch cooperation have eroded profoundly since the 1980s. Party polarization has worsened. Legislators hardly socialize across the aisle. There is no bipartisan caucus of politicians with shared experience – say, fighting in World War II – to create any sense of transcendent institutional allegiance.

Each party has its own plausible story of when the fall from grace began. Democrats would likely point to Iran-Contra – or perhaps even to Watergate – as the defining moment. Republicans would point to the defeat of the Robert Bork nomination. But, as any game theorist can confirm, it hardly matters. Once two parties in conflict depart from an equilibrium position of mutual accommodation, there’s no clear way back unless somebody is willing to go first in stepping back from the brink.

Here’s the rub. Before anyone makes a conciliatory move, there are typically two preconditions. The first mover must trust that the other party will reciprocate. And that trust must be built on shared incentives to value the long-term shared enterprise over short-term political advantage. Right now, it is not clear that either condition pertains.

A 19th century British Lord once observed: “Every political constitution in which different bodies share the supreme power is only enabled to exist by the forbearance of those among whom this power is distributed.” Ours appears not to be the season of forbearance. If Republicans and Democrats persist in exercising their powers to their outermost plausible constitutional limits, many opportunities exist to make things even worse. Perhaps we can even reach a Black Hole Option – the exercise of destructive force so powerful that no light of effective governance can ever again emerge.

Peter Shane

Peter Shane teaches constitutional law at the Ohio State University's Moritz College of Law and is the author of Madison's Nightmare: How Executive Power Threatens American Democracy (University of Chicago Press 2009).