Norms, Precedents and Senate Confirmation

The Supreme Court vacancy created by Ruth Bader Ginsburg’s passing has thrust the Senate’s constitutional confirmation function into an already chaotic 2020 election cycle. Senate Majority Leader McConnell appears poised for a pre-election rush to confirm Judge Amy Coney Barrett—in direct contravention of his previous statements about confirming Supreme Court nominees in election years and vague Senate norms regarding deference to elections. 

As another norm falls, scholars have begun to wonder whether these guardrails of American politics can withstand intense partisan tactics. Many commentators are particularly troubled by the loss of symbolism that often accompanies these norms, such as their role in maintaining the “decency” of our politics: Otherwise rabidly ambitious politicians nonetheless abide by agreed upon rules to facilitate stability and reciprocity. As a result, institutions have remained stable amid fractious politics and transitions of partisan power. Hardball has been limited—though never totally nonexistent. 

For SCOTUS nominees before the Senate, partisans have historically demonstrated forbearance. Well-vetted presidential nominees have been put before the chamber, considered and confirmed by supermajority or unanimous votes. These “unwritten rules” of confirmation politics have lent bipartisan legitimacy to justices and the Court, and a sense of integrity to the process. 

But, the last several years of Senate norm-breaking threatens that stable equilibrium. Removing the guardrails from Senate confirmations risks deeper slides into hardball partisan tactics. And, without the rules keeping politics “in bounds,” the common refrain is that partisanship will tear apart the very fabric of the American political system.

Yet, to frame norms as unwritten rules adopted for the good of American democracy misses an important element of these guardrails, and thus of their creation or dismantlement: Norms are not rules. They do not bind action like chamber rules or the Constitution. They are simply established behavioral routines that, in Congress, can sometimes appear like rules. For example, the “seniority rule,” elevated the most senior majority members to the chair of committees and was nearly inviolate for most of the 20^th century. But it was not a rule. It was never formally adopted or voted upon. It was a practice of politics; a behavioral routine voluntarily followed over a period of time. 

Behavioral routines in politics are a function of members’ individual and collective incentives. In Congress, maximizing individual or collective goals requires an understanding of the internal power structure. Today, if members want to secure passage of a bill, obtain a better committee assignment or wield more power generally, they have to cater to the party leadership currently in control of those processes. That has facilitated stronger partisan norms in the current era, like heightened partisanship on procedural votes (even on bills they do not prefer), increasingly unorthodox processes and partisan hardball. Members flouting these norms sometimes lose influence. John Boehner removed six members from their committees over his five-year tenure as Speaker, and nearly removed Mark Meadows (then R-N.C.) from his subcommittee chair, while Speaker Paul Ryan failed to back dissidents in their primary races. Stronger party loyalty also enabled senior Representatives like Henry Waxman (D-Calif.), Elijah Cummings (D-Md.), and Mac Thornberry (R-Texas) to leapfrog their committee’s seniority to claim the gavel. The existing institutional structure and the politics undergirding it create incentives and disincentives for members’ behaviors. As constituencies polarize, leaders feel increasingly emboldened to exercise their procedural control, doling out rewards and punishments.

Many of the norms currently under the stress of partisan pressure are relics of a bygone era. For instance, deference and reciprocity were behavioral routines in a system of decentralized power in Congress. The broad parties of that era each contained factions more loyal to local, regional or sectional interests than their partisan affiliations. Partisan defections were not just a frequent threat but a common expectation, and these norms developed because diverse coalitions required logrolling cooperation to deliver spoils to these very different factions. Tactical forbearance was not an ideal delivered from on high but rather a procedural necessity. 

But, reciprocity and forbearance were as much a side effect of institutional politics as they were coveted norms of democracy. They were not rules sculpted into the rock of the Capitol, but rather were borne out of the incentives, power and political competition of a different period. Likewise, congressional deference to Supreme Court nominees emerged from more robust legislative governance, lacking judicial centrality and decentralized congressional power. 

Today’s norms, on the other hand, are rooted in nationalized politics, strong partisanship, powerful party leaders and a dysfunctional legislature, all of which incentivize a lack of procedural forbearance or cooperation when an opening on the highest court arises. In light of this, we cannot expect the precedents of a previous generation to serve as the political guardrails of our current politics. We can lament these lost traditions, but until a different power structure creates more incentives to cooperate, we should expect the norms of today’s partisan era to increasingly supplant those of previous ones—both critical and convenient alike.