David Collins | Why Nine: A Conversation on Court Packing

David Collins | Why Nine: A Conversation on Court Packing

October 11, 2019 0 By Stanley Isaacs


– [David F. Levi] Good afternoon everyone. I’m David Levi. I’m the director of the
Bolch Judicial Institute. I used to be Dean of the Law School. My distinct honor and pleasure to introduce Justice David Collins. You know, if you’re a rap star, you get to add an
adjective after your name. You know, you get to be the creator, (audience laughing) and I was thinking that
David is so thoughtful, he should be David Collins the thinker. (audience laughing) He’s very distinguished. He was the Solicitor
General for New Zealand then he served on the
High Court in New Zealand which is actually the low court, or it’s actually the High
Court of the low court. A Dickensian touch. But you have to go to
law school to understand that when we talk about the High Court we actually mean the low court. Everybody knows probably that in New York, the Supreme Court is
actually the trial court and the Court of Appeals
is the Supreme Court. Makes it all very lovely and confusing. You get your money’s worth
when you go to law school because you learn about that stuff, and then very recently was
promoted to the Court of Appeals which is the intermediate
appellate court in New Zealand just under the Supreme Court, which is in fact the highest court. And what is so wonderful
in our relationship with the Justice is that he is our student and he has an LLM from Duke from our judicial studies program. He wrote his dissertation on
competency in appeal cases which has been published by
“Law and Contemporary Problems” among other places, I think. So please welcome Justice David Collins. Thank you. (applause) – [Justice David Collins]
Thank you very much, David. It’s a wonderful privilege to
be back at Duke University. You’re one of the most wonderful
law schools in the world and I’m very privileged
to be associated with it. My intention is to speak
for about 25 minutes, and then encourage as much
debate and questioning as I’m able to. I’ll set the scene by
examining what happened when President Obama
nominated Judge Garland to the Supreme Court in 2016. I’ll examine the history of how the size of the court has changed and President Franklin Roosevelt’s ill-fated court packing plan. And then I will deal
with why court packing is a fraught idea because court packing
risks further undermining the court’s reputation, it risks undermining the rule of law, but, most substantially, it
further undermines valuable but highly fragile conventions. When news broke on the
13th of February, 2016 that Justice Scalia had passed away, I, like most students of
constitutional affairs, was sadden by the loss of a judicial icon. That sadness was compounded, however, when a few hours later Senator McConnell announced that Justice Scalia’s successor should be appointed by the next President. Mr. McConnell argued that the electorate should have the opportunity to influence who the next Supreme
Court Justice should be, even though President Obama had a further 11 months
to serve in office. I’ll refer to what happened
in 2016 as the 2016 strategy. That strategy required
the Appointments Clause to be interpreted as meaning two things. First, that it is for the
Senate to determine when, and under what circumstances, an appointment to the
Supreme Court shall occur. And secondly, that the
Senate has no obligation to consider a President’s nomination to fill a vacancy on the Supreme Court. I was intrigued to ascertain on what basis this interpretation of
Article 2, Section 2, how it could be justified. Five reasons appear to have been advanced by Republican leaders in the Senate and those who have
endorsed the 2016 strategy, and those five reason
appear to be the following. First, that the words
advice and consent imply that the Senate has the authority to determine whether or not it
should consider a nomination. Second, as the Senate does not
have to confirm a nomination, then impliedly the Senate does not have to consider a nomination. Third, the Appointments Clause does not say the Senate shall
give its advice and consent, leaving room, it is said, for the Senate to decide under its rules and procedures whether or not to consider a nomination. Fourth, the Appointments Clause is silent on the procedure that
the Senate is to follow when a President makes a nomination and it is said that this void is filled by Article 1, Section 5 which empowers the Senate to determine the rules of its procedures. And then through this rulemaking power, the Senate can determine whether or not to consider a President’s nomination. And finally, it has also been argued that as Congress can increase or decrease the size of the Supreme Court then the Senate can legitimately control the size of the Supreme Court by withholding consideration
of the nomination. Now I don’t want to detract from the main focus of my presentation by engaging too deeply with
each of these arguments. I will confine myself
to making seven points. First, it’s trite but it needs to be said that construction arguments
that rely on implied meanings must yield to the plain meaning of the text of the Constitution and there are three relevant
parts to Article 2, Section 2. Namely, the requirement that
the President shall nominate; secondly, that the
President shall appoint; And thirdly, that the appointment shall be made by the President with the advice and the
consent of the Senate. The role of the Senate
to advise and consent is therefore in the context of the President being required to nominate and to appoint
Justices to the court. Thus it is the President
and not the Senate who determines when a vacancy on the Court is actually filled following, of course, the advice and the
consent from the Senate. The insistence inherent
in the 2016 strategy that the Senate, and not the President, should determine when and
under what circumstances a vacancy on the Court is filled, is, I suggest, difficult to reconcile with the plain language of
the Appointments Clause. The second point I make is that the Senate does not discharge its advice and consent role when it is prevented by Senate leaders from actually considering
a President’s nomination. When asked to do so in 2016, the Senate neither advised upon or considered Judge Garland’s nomination. The third point I make is this, that the power of the Senate to decline to consent to a nomination should not be confused with
meaning that the Senate has the power to refuse
to consider a nomination. The distinction is quite important. Senate consideration and
rejection of a nomination is clearly permitted by
Article 2, Section 2. By not considering Judge
Garland’s nomination, the Senate precluded a
lawfully elected President from having the opportunity
to appoint a judge to fill a vacancy on the court. The 2016 strategy meant
that the Senate assumed, for its political benefit, the power to determine when and under what circumstances an appointment could be made to the Court. Fourth, it is correct that
the Appointments Clause does not say that the Senate shall give its advice and consent and the reason for this, I think, is tolerably easy to understand. The Senate may legitimately
decline to approve a nomination and it would’ve been
grammatically challenging if the Appointments Clause had said that the Senate shall advise
and consent to a nomination when it has the option
to withhold its consent. Fifth, the Senate’s
authority to make rules to regulate its own procedures cannot be used as a vehicle to avoid the clear requirements
of the Constitution, which requires the President to nominate and to appoint when there
is a vacancy on the Court. The sixth point I make
is that the argument that, as Congress can
regulate the size of the Court then the Senate does nothing wrong by reducing the size of
the Court for a year, ignores the fact that changes
to the size of the Court can only be achieved through legitimate legislative processes. It’s not for the Senate to unilaterally determine
the size of the Court. And the seventh and final point I make in relation to the arguments that have been advanced to
justify the 2016 strategy, is that the evidence concerning the original meaning of
the Appointments Clause and the intentions of the drafters weighs heavily against the arguments that have been advanced in
support of the 2016 strategy. The Constitution Convention speeches of Alexander Hamilton, James Madison, John Jay and Thomas Jefferson show that Article 2,
Section 2 was not designed to confer equal power on
the Senate and the President in relation to judicial
nominations and appointments. As Hamilton explained,
the political enforcement of checks and balances
under the Constitution would occur through the
confirmation process. He said and I’m quoting from “The Federalist Papers”, 76 and 77, “The blame of a bad
nomination would fall upon the President singularly and absolutely. The censure for rejecting a good nominee would lie entirely at
the door of the Senate, aggravated by the consideration of their having contravened the good intentions of the Executive.” Hamilton contemplated that the
President’s part to nominate and the Senate’s concomitant
duty to consider any nominee as necessary checks to prevent the Senate from securing functional control over the appointments process. The Founders clearly did not
contemplate the possibility of the Senate choosing which judicial nominations
it would consider and it was not contemplated
that the Senate would assert power over
the nomination process by refusing to consider
a President’s nomination. As we now know, the vacancy created by
Justice Scalia’s death remained for a record 293 days and enabled the new President to appoint, as Justice Scalia’s successor, a Justice who is perceived to inhabit the conservative
spectrum of the Court. The 2016 strategy occurred in the context of a persistent erosion of constitutional and political norms governing judicial appointments. In 2003, Senator Reid led
the blockade by Democrats of nominations by President George W. Bush to federal Courts of Appeals position and it was also Mr. Reid who orchestrated the change in 2016 to the Senate’s long-standing practice of requiring 60 votes to
overcome the filibuster. When changing the votes required
to overcome the filibuster, Mr. Reid argued that the departure from the long-standing previous practice was required because of the difficulties that Democrats were encountering in getting judicial nominations
from President Obama confirmed by the Senate. At the time, the then Senate minority
leader Senator McConnell warned that Senator Reid
would regret implementing what was referred to
as the nuclear option. And although Senator Reid’s
so-called nuclear option did not extend to Supreme
Court nominations, Senator McConnell seized
upon Senator Reid’s reasoning to lower the vote threshold for the nomination of
Justice Gorsuch to just 51. Other tactical steps taken in recent times include the abandonment
of the blue slip rule. And more recently we
have seen Mr. McConnell endeavoring to redefine the 2016 strategy by saying that there has been a tradition in place since 1880 whereby if a vacancy occurs in
a presidential election year and there is a different party in control of the Senate
than the presidency, then the vacancy is not filled. As noted by Carl Hulse
in his excellent book called “Confirmation Bias”,
published just a few months ago, this is a very clear
attempt by Mr. McConnell to set a new standard and to, and I’m quoting from Carl Hulse, “provide cover to fill any vacancy that should occur on
the Court during 2020.” The 2016 strategy has led to a number of
commentators arguing that if the Democrats regain control of the White House and Congress then they should expand the
size of the Supreme Court to negate the effect of the Court’s current
five-four conservative majority. These efforts have
spawned an action group, led by Professor Belkin, a
political science professor at San Francisco State University,
called Pack the Courts. This group is urging Democrat
presidential candidates to back its idea to
expand the Court to 12. In March, former Attorney
General Eric Holder said that the next Democrat President should seriously consider
adding new seats to the court and Mayor Buttigieg has argued for an expansion of the Court to 15. The genesis of this proposal is an article by Professors
Epps and Sitaraman in which, amongst other ideas to depoliticize the appointment
of Justices to the Court, they suggest that five Justices
be nominated by each party and another five be nominated
by the ten appointed Justices. Now in expanding and examining why expanding the size of the Supreme Court is a fraught idea, it’s helpful to set the scene by looking at the history of the
structure of the Supreme Court. When Congress passed the
Judiciary Act of 1789, it provided the six Justices
of the Supreme Court, and that number reflected
the judicial circuit system then in place. There were just three
circuits but each circuit was, at the time, presided over
by two Supreme Court Justices and one District Court judge. The outgoing Federalist Congress of 1801 reduced the size of the
Supreme Court to five in an effort to try and prevent the incoming President Jefferson from appointing a new member to the Court. It transpired, however, that
during his tenure as President, Jefferson was able to appoint
three Justices to the court. That occurred because the incoming
Democratic-Republican Congress quickly restored the
size of the Court to six. And then in 1807 when Congress
established a new circuit to cover Ohio, Kentucky and Tennessee, the size of the Court
was expanded to seven. And then there was a vacancy that occurred during
President Jefferson’s term which enabled him to appoint
three Justices to the Court. In 1837, when nine circuits were created, the size of the Court was
correspondingly increased to nine but in 1863, the Court was expanded to ten in recognition of California’s
induction into the Union. After Andrew Johnson become President, Congress moved to block his ability to make appointments to the Court by reducing the size
of the Court to seven. But after Grant was elected President, Congress passed the Judiciary Act of 1869 which restored the number, which increased the number of
Justices on the Court to nine, which then corresponded
with the number of circuits in place at the time. Now the number of circuits
was expanded to ten in 1929 and then to eleven in 1980 but the number of seats on the Court has remained at nine
for exactly 150 years. The changes made in 1801 and 1866 to reduce the number of seats on the Court were designed to block the ability of first President Jefferson and then President Andrew Johnson to fill vacancies on the Court And these, I think, can
be properly described as incidents of court unpacking. The first and only genuine attempt to expand the size of the Court in order to assist a President achieve his political objectives occurred in 1937. The tipping point was reached when the Court delivered its
decision in the Morehead case. That was the tenth decision from the Court decided between January 1935 and June 1936 in which it had struck down
New Deal-related legislation. It was that decision which prompted President
Franklin Roosevelt to advance a plan to expand by six the number of Justices on the Court, one for every Justice
over 70 years of age. This plan was promoted on the pretext that the Court was overworked and that sitting Justices
were too old to cope with the pressures of sitting
on the nation’s highest court. There were two primary sources of backlash to the President’s plans. First was the Justices
of the Court themselves. Under the careful leadership
of Chief Justice Hughes, the Chief Justice enlisted the assistance of Justices Van Devanter
and Justice Brandeis in writing a seven-page letter setting out the arguments as to why the Court was able
to cope with its workload. The fact that the Chief
Justice sought the support of Justices Van Devanter
and Justice Brandeis in writing his letter reflected
the unanimous opposition there was from the Court to
the President’s proposal. The Chief Justice gave that letter to Democratic Senator Burton Wheeler, who was opposed to the
Judicial Procedures Reform Bill and who ensured that the
Chief Justice’s letter opposing the President’s
court-packing plan was very widely publicized. The second source of
opposition was political. Perhaps most surprising to the President was the level of opposition
to his court-packing plan from his own party. According to Jeffrey Shesol, the author of the wonderful book “Supreme Power: Franklin
Roosevelt vs. the Supreme Court”, it was the duplicity
of the President’s plan that generated political
opposition in his own party. Senior Democrats were unimpressed that the President was attempting to disguise his political maneuverings with a plan that was put forward on the false basis that he was trying to achieve court efficiencies. As we now know, when the
first Justice Roberts cast his vote in the West
Coast Hotel and Parrish case in favor of upholding
the constitutionality of the minimum wage legislation
passed by Washington State, the real political justification for the President’s court-packing
plan began to unravel. It was however a stunning setback for one of this country’s
most popular presidents when his court-packing proposal failed. President Roosevelt did
nevertheless achieve his goals in transforming the
composition of the Court. He was able to appoint a total
of nine Justices of the Court between August 1937 and February of 1943. Probably the real reason
for the visceral objection to President Roosevelt’s
court-packing plan was the fear that such a measure would dramatically change the balance of political influence over
the composition of the Court. Absent court-packing measures, the executive must bide its time and await vacancies on the Court before it can appoint new Justices. This has had some anomalous consequences. President Carter was
one of four presidents who did not get to nominate
anyone to the Court whereas Presidents Jackson, Lincoln, Taft and Franklin Roosevelt between them managed to appoint 25
Justices to the Court. Expanding the size of
the Court would involve creating a number of new
appointments at one time which, in turn, is likely to generate the deleterious consequences
of court-packing that I’ll now move on to discuss. So why is court-packing
such a fraught idea? It’s easy to see why
Democrats are frustrated. They view the treatment of
Judge Garland’s nomination as at worst, a violation
of the Constitution, or at best, a violation of the convention that the Senate should at
least consider nominations by a President for a position
on the Supreme Court. That frustration would
be further compounded if, during the course of 2020, a vacancy should occur on the Court, and the President and the Senate appoint a new Justice to the Court. Political frustration is, however, not a reason for taking the radical step of expanding the size of the Supreme Court in an effort to address political wrongs. And the reasons for this can
be distilled to three concerns. First, the Court’s reputation; second, the risk to the rule of law; and third, the annihilation
of Constitutional conventions. And I’ll deal with each now, starting with the Court’s reputation. Throughout its history,
there have been periods when the Court’s political neutrality has been called into question. The first years of Jefferson’s presidency, and the periods between 1935 and 1937 when President Roosevelt’s
New Deal legislation was being struck down by the Court, are two examples of when the
Court’s political neutrality was very much in question. It’s also fair to say
that the dissatisfaction that some today have with the Court may be traced to its 2000
decision in Bush v. Gore. The current partisan five-four
division on the Court reflects the politics of the
Presidents who nominated them. This concern is well-recognized. Justice Kagan last year warned that it was, and I’m quoting from her, “a dangerous time for the Court”, because, and I continue what she said, “people increasingly look at us and say ‘This is just an extension
of the political process’.” The means by which Justices
Gorsuch and Kavanaugh came to be on the Court
have compounded concerns that the Court’s reputation for political neutrality
is rapidly eroding. As Professors Epstein and
Posner have explained, Justice Kennedy was the
last Justice on the Court to regularly vote against the ideology of the President who appointed him. Justice Kennedy has been replaced by a much more conservative Justice. Note thus for the first
time in living memory, the Court will be seen by the public as a party-dominated institution, one who votes on controversial issues are essentially determined by party affiliation of recent Presidents. In the past, the Court has
been able to weather periods of turbulence and usually it has emerged as an even stronger institution. Marbury and Madison was, to some degree, a product of the deep divide between the Federalists
and the Jefferson regime. Roosevelt’s New Deal statutes began to be upheld by the courts in 1937 and within a short period of time, that President was able to appoint more Justices to the Supreme Court than any other President in the country’s history
other than Washington. And the current well-founded concerns that the Court is becoming politicized will, I suggest, increase dramatically if the size of the Court is expanded in order to avenge political wrongdoing. It is likely that court-packing measures will dismantle any
remaining public confidence that the Court has the ability
to be politically neutral. My second concern is the
undermining of the rule of law. The seeds of the struggle for power between the three branches of government were sown in the Constitution itself, under which members of
the Court are appointed through the combined efforts of the other two branches of government. The struggle for power between the so-called equal
branches of government is a battle that the Court lacks the resources to fight. It has, after all, just one function, namely to decide cases and controversies. As shown by the desegregation of schools, the Court is dependent on the executive to enforce its judgment and, of course, it relies on Congress to provide the funds required for salaries and to meet the costs
of running the Court. Not withstanding its vulnerable position, the Court has repeatedly
overruled and challenged the objectives of Congress
and the Executive. That it has done so successfully
is even more remarkable when we reflect on that
fact that from time to time, the Court has not only acted out of step with the popular will, but it has also been wrong. Dred Scott was indefensible and many of the judgments
striking down New Deal legislation were acknowledged to
have been wrongly decided in subsequent decisions. The success of the Court
has, in large measure, been the product of, at
times, begrudging willingness of the other branches of government to accept its decisions as legitimate because the Court professes to
abstain from party politics. To quote Justice Robert Jackson, “the court speaks through
the technical forms of the law suit which are not aligned with the politics in its
properly accepted sense”. There is, however, a genuine risk that court-packing for political purposes will undermine the Court’s legitimacy when the political composition of one or more of the other
branches of government does not coincide with
those who were responsible for expanding the size of the Court. Proponents of court-packing
can rightly argue that any breakdown of the rule of law by partisan rejection
of the Court’s decisions would be the fault of those who don’t respect the Court’s decision. Court-packing, however, is likely to create a very
contentious environment that could quickly trigger a rejection of the Court’s decisions. This can and ought to
be avoided at all costs. The final point I wish to make concerns the undermining of
constitutional conventions. We are living in an era in which political conduct and strategy is driven by extreme ideology. This trait reflects an
uncompromising approach that those vested with political power take towards anyone else who is perceived to have
a different viewpoint. We have been warned that even more uncompromising measures may be in store by Senator Graham, who proclaimed, and I’m quoting from him, “The worst is yet to come.” when the Senate Judicial Committee disregarded the blue slip convention. This winner takes all approach
to political decision-making places to one side any notion that politicians are merely the stewards of the offices they hold. America is not alone in its
experiencing this phenomenon. United Kingdom is now
trying to reconcile the fact that it is led by a Prime Minister who was willing to mislead the Queen when seeking to prorogue Parliament and who promptly terminated the careers of 21 senior members of his own party who had the audacity to vote against him in Brexit-related measures that were before the House of Commons. Political and constitutional conventions are amongst the first casualties of this political firestorm and for the balance of this talk, I will just focus upon
constitutional conventions. It was in 1863 that Albert Dicey, who was the source of the
phrase the rule of law, wrote that the conduct of
political actors are governed by two parallel but
interconnected sets of rules. He described the second of these as the understandings,
the habits or practices that are not really laws since they are not enforced by the courts but the conventions of the Constitution or constitutional morality. Constitutional conventions are the oil that lubricates the machinery
of democratic government. They fill the voids created by constitutions, legislations,
and the common law, and they provide a very
invaluable counterbalance to what is otherwise unacceptable conduct. Now we know that conventions can play a very important role in constitutional interpretation as confirmed by the Court
in the Noel Canning case but it is really the role, the role that constitutional
conventions play in regulating a significant portion of the decision-making
and conduct of actors that is so significant, not only in the American
model of democracy but also in all
Western-styled democracies. Thus whilst the text of the Constitution is the primary source of my concerns about the 2016 strategy over the nomination of Judge Garland, historical practice and conventions are also of crucial importance. There are many who argue
that the 2016 strategy not to consider the
nomination of Judge Garland was not contrary to the
terms of the Constitution. Even if that argument is correct, the refusal to even
consider the nomination of an elected President
to fill a judicial vacancy breached a long-standing norm that requires such a nomination to be at least considered by the Senate. Prior to the nomination of Judge Garland, there had been 103 instances in which an elected
President nominated someone to fill a Supreme Court vacancy and began that process
prior to the election of the President’s successor. In all 103 cases, the sitting President was able to both nominate and
appoint a replacement Justice by and with the advice
and consent of the Senate. Sometimes the President had to
make more than one nomination but in no case was there a
precedent for the 2016 strategy. Professors Kar and Mazzone have
written a excellent article published in the 2016
“New York Law Review” in which they demonstrate that while Senate Republicans
frame their opposition to the nomination of Judge
Garland in historic practices, their plan in fact
presented a major departure from more than two centuries
of historical tradition. Incidentally, there have been in the past, in 1845, 1851 and 1866, three instances in which a Vice President, upon assuming the office of President, was unable to progress a nomination through the Senate process. Those incidents occurred at a time when there were some doubts about what powers the Vice
President actually acquired when assuming the office of presidency. Those doubts were subsequently addressed through the passing of the 25th Amendment. There have also been three historic cases in which a sitting President
sought to nominate a person to fill a Supreme Court vacancy after the sitting President’s successor had actually been elected and the Senate responded
in all three cases by transferring to the
newly elected President the opportunity to make the
appointment in question. I’m sure we can all agree that these two types of
cases provide no precedent for the 2016 strategy. After conducting an exhaustive study of all Supreme Court
nominations and appointments, Professors Kar and Mazzone
conclusively established that the convention in this country is, and I’m quoting from them, “whenever a Supreme
Court vacancy has existed during an elected President’s term and the President has acted prior to the election of a successor, the sitting President has been able to both nominate and appoint someone to fill the relevant vacancy by and with the advice and
consent of the Senate.” Some opponents argue that
court-packing legislation risks triggering a spiral of
further court-packing measures when political powers change sufficiently to enable this to happen. I don’t know how realistic that fear is and I don’t want to
explore it any further. It might be something
we can discuss later. My more fundamental concern is that changing the size of the Court for overtly political reasons
will further undermine the existing fragile
Constitutional conventions and signal that such
conventions can no longer serve the functions for which they were devised. In other words,
court-packing will eliminate any chance of adhering to conventions when further court
appointments are required. The type of doomsday
scenario that may occur is a refusal by the Senate to consider any judicial
nomination from the President when the President and
the majority of the Senate are from different political parties. This isn’t a fanciful fear. There were more than hints of this in 2016 when at least three
Republican Senators said that if Mrs. Clinton won the White House then they would not consider any person whom she nominated to fill
the vacancy on the Court created by Justice Scalia’s passing. Expanding the size of the
Court for political reasons or as political payback
is a frank acknowledgement that conventions can no longer
fulfill their vital functions and such an outcome is not sustainable. I know that coming from a
stable democracy such as my own that it’s perhaps not polite
for me to comment too much about United States politics but it is imperative for both Republican and Democratic politicians to recognize the importance
of upholding the conventions that ensure the survival of constitutional and
democratic structures. It was wrong of the Senate not to consider Judge Garland’s nomination to the seat created by the
death of Justice Scalia. That wrong, however, cannot
be used as a justification for an even more egregious wrong, namely packing the court in retaliation for the 2016 strategy. What both sides of the
political divide need to do is recognize that they
are the temporary stewards of the powers that are bestowed upon them and discharge those powers
with honor and with dignity by adhering to the
conventions that are critical to the health of all democracies. Thank you. (applause) – Very, very, very
happy to take questions, particularly questions from
anyone who disagrees with me. (laughter) – Surely there must be some dissent. – [Audience Member] I’d be
happy to get us started. (group laughs) I prefer to hear from the students but I’ll get us started
if no one else wants to. So I debated court-packing
with a number of the folks that you mentioned and I’ve
come down on your side. A reason I’ve given in addition to the good reasons you’ve given is legitimacy always exists
in the minds of an audience. You’re talking about public legitimacy, you’re talking about white
politicians with power abide decisions they hate. I’m also concerned about what’s going on in the minds of the Justices. That whatever you think
about the kind of politics John Roberts is practicing, it’s different than the kind of politics Mitch McConnell is practicing and we all have a huge stake in preserving those differences. And court-packing, I’m worried that would, would threaten to obliterate
the differences that remain. The idea being why should
we try to act like judges and not politicians
when we’re being treated just like politicians. So I think that’s a different
argument than I heard from you and I think it’s worth thinking about. On the other hand, are you suggesting that there
are no circumstances at all in which court-packing
would be appropriate, no matter what the Supreme Court does? We’ve now got a Supreme Court
that is, some would say, substantially more conservative
than the nation as a whole and it’s for the first
time in American history a product of a President
who lost the popular vote successfully nominating two
Justices who were confirmed by a majority of the Senate that represents a minority of the nation. Right, so actual democratic legitimacy, one might argue, doesn’t exist. No matter how extreme, no
matter how far they go, would you say court-packing
is never appropriate? – Yes. – [Audience Member] Now I
think John Roberts is too savvy to ever get close to that point. Some would say he’s already
surpassed it, right? But are you really saying no, never or to give you another possibility, what if it turns out that we can determine with a high degree of confidence that a President who made
decisive appointments to the Court was not legitimately elected? It was a result of illegal behavior. Is there any way to undo the damage for the next 30 or 40
years, given life tenure, except by making additional appointments to neutralize the long-term impact of that illegitimately elected
President’s nominations? – [Justice Collins]
Well, you’ve put forward two very strong arguments
for court-packing. I personally think it’s a step too far and I would hate to see a situation arise where court-packing is justified purely out of political, as political payback or as a political response to decisions that are
made by the Justices. Fundamentally the Constitution says that the answer lies in the populace being able to elect its politicians every four years and well, the President every four years. And that I think has to be the touchstone by which all these decisions are measured. Hi! – [Audience Member] Hi. I’m interested in what possible remedies there might have been to the 2016 strategy other than wait and see. So clearly the decision
was made to just wait and the hope was that Obama’s pick would be able to continue under a new Democratic administration. – Or a different nominee. – [Audience Member] Right. So the question is would a suit filed either by Obama or Democratic
members of the Senate have even been justiciable? – Hmm. No. (laughing) (Students laughing) – [Audience Member] It just
seems that this is a problem without a solution. – Yep. Mule’s sticking no. (Group laughing) – [Audience Member]
That was my thought but, – Yeah, yeah, yeah. I think the imperfections
of the Constitution are very, very clear in this situation. – [Audience Member] Well,
given that there’s no solution, does that open more leeway
for a radical solution, which is constitutional, like court pack? – Again, I come back to the point, I think when it is done for
purely political purposes, to achieve political wins, then that’s a step too far. Hi.
– [Audience Member] Hi. I guess it’s just though, would this really be a political movement if you view the two justices
that have been appointed as not really being
legitimately appointed, so due to one, the 2016 strategy, then two, with everything that happened with the Kavanaugh hearings – Sure. – [Audience Member] So would
this not just be another way to try to restore the
legitimacy of the Court, when lot of the American
public really feel it doesn’t have that legitimacy anymore? – Sure. Well, the solution in relation
to the Kavanaugh situation is if he was not legitimately appointed because, for argument’s sake,
that he misled the Senate, then the answer lies in the processes that are set out in the
Constitution for his removal. That doesn’t require a
court-packing measure. It’s a little more difficult in relation to Justice
Gorsuch’s appointment and I understand why
many people regard him as not having been legitimately appointed but the reality is, he was. He was appointed by a duly
elected President of this country following the nomination
from that President and through the advice
and consent of the Senate It’s galling for many, I understand, but that’s nevertheless lawful. Hi. – [Audience Member] Hi. I’d like to hear your
perspective, I think, on gerrymandering generally, and how and whether packing the court is just a different kind of gerrymandering in a different branch of government, and how you perceive
legitimacy and rule of law in terms of how it has or hasn’t been damaged by gerrymandering, and are we talking about
the same kind of thing here? – Well, I’d like to think
that there are differences and gerrymandering seems to be a uniquely American phenomenon, it really does. There are all sorts of reasons for that. So in most other British Commonwealth, common law jurisdictions, politicians don’t have
a indirect influence over the electoral boundaries and the size of electorates, it’s all done by independent commissions. And judicial appointments
are actually, in some ways, far less transparent
in those jurisdictions than they are in the United States. So in my country and in a
number of common law countries, appointments to high judicial, all judicial office actually, are made by the Attorney General who simply gives advice
to the Governor General on behalf of the Queen that it’s time that we
appoint David Collins to the High Court. Now the Chief Justice
is consulted over there but it’s all done behind closed doors so I didn’t have to appear
before any legislative committee then get to justify all
my law review articles, none of that. None of that happened. Just one day, the Attorney
General puts out an announcement and that’s it. I get a piece of paper from the Queen saying I am one of her judges. Now, that’s remarkably
untransparent by American standards, but you know, it seems to work. At least, I think it works, (group laughing) – because we do achieve a
remarkable diversity on our bench through that process and, with one exception
in my country’s history, we have never had an issue
over a judicial appointment. And the one issue which we had was really, by most people’s standards,
an error of judgment by that judge which
resulted in him resigning. Now, I’ve gone around and around avoiding answering your question, (group laughing) – and that is because I
think as I reflect on it, there is quite a difference, really, between gerrymandering for
purely political purposes to achieve political powers and the use of legitimate, I’m sorry, and the use of processes that ensure that a President and a
Senate achieve appointments that they feel more comfortable with. But that doesn’t mean to
say that 2016 was right. Far from it. I think it was an outrageous part of American constitutional history. Yeah. – [Audience member] I’m curious to know if you have ideas or recommendations for depoliticizing the nomination process. – It would require constitutional change. – [Audience member] And
what would that look like? – I’d get rid of tenure for life. I’d have a 16 year appointment and no one sitting beyond 75. – [David L.] 75? – 75. Yeah. Which is retirement age for senior judges of
United Kingdom, Canada. In our country and
Australia, it’s too low. 70. So I’m… (group laughs) – In four and a half years, I’ve suddenly become officially senile and
incapable of doing my job. (laughs) – [Audience Member] Well
then, you can come over here. (audience laughs) – Sorry. – [Audience Member] I
just want to follow up on your idea there. I’m a little concerned about
the idea of a lame duck justice when you know that justice
is about to be aged out or get to the end of that term
in an apex court like that. How would that structure avoid a sort of strategic timing of cases in order to avoid a justice? – It just doesn’t happen. – [Audience Member] Okay. – It simply never happens because the Justices understand full well that they have to discharge their oaths fully and fairly and transparently, and to avoid a case because
you might be retiring would be completely contrary to every principle of judicial conduct. – [Audience Member] It wasn’t,
not the Justice retiring, the people filing the cases. – That takes a fair bit of maneuvering (laughs) and in any event, so for say the Supreme Court of England and Wales there are 12 Justices. They normally sit as a panel of five so you can’t be guaranteed
what you are going to get. Canada’s probably a little more closer to the problem that you’re thinking about because I think there’s nine. Is there anyone from Canada here? Nine or ten? – [Audience Member] I think we
actually just looked at that and that was the question
that came up about Canada. – High Court of Australia, Australia being Australia, the highest court is
called the High Court, they normally sit as a
panel of seven out of, they normally sit as a
panel of five out of seven that they have on the court, and in New Zealand we have, we have actually added a
sixth Justice to our court and they only meet as a panel of five. – [Audience Member] Okay. – So most of the time you can’t sort out who’s gonna be your judge (laughs) – [Audience Member] David,
did you mean 18 years as opposed to 16 years? Because if you don’t want to change – Sorry again, yes. – [Audience Member] Right,
’cause if you don’t want to change the size of the Court, if you want to keep it at nine, then every two years someone’s
on and someone’s off. And is your thinking that
that would depoliticize, in response to Melinda, because everyone knows it’s regularized. You’re going to do this every two years, it lowers the stakes
of any one nomination. They’re not going to be
sitting for the next 40 years. – Yes. – [Audience Member] I think
there are substantial upsides but there are also downsides, right? So when the endgame sits in and the Justices are thinking
about their next career move, they may not be entirely
identified with the judiciary. They might be thinking about
what they’re doing next. There’s also a real
concern about stability. Given how polarized this
country is, unlike New Zealand, and given how far apart
some of these Justices are, I mean, you could have radical, unless the Justices, it’s a
collective action from them, unless they self-consciously
are constantly mindful of this, you could have gigantic swings in the law of abortion, race,
gerrymandering, what have you, every two years, right? Or every three years, right,
when the new cases are heard. So there are problems that
we’d need to deal with. – Yeah. – [David L.] But if
they took senior status like an appellate judge and that was kind of the expectation, and they’d be, probably
most of them would be 75 – Not much you can do after 75. (laughing) (audience laughing) – [David L.] The private
sector isn’t like, hungry, (David and audience laughing) for Supreme Court justices. – [Audience members inaudible] – [David L.] 75 isn’t what it used to be. (audience laughing) – [Audience Member] It’s younger! (audience laughing) – [David L.] as I get closer to it. But I think the expectation
is they’d take senior, they’d take senior status. They’d sit on the Courts of Appeal and they’d actually enjoy that. So I don’t think it would be, I think from their boat,
a lot of these schemes, the worried ones, well, the Justices will be looking at the lawyers practicing before
them as potential employers and that that will, – [Audience Member] Depends
when they’re appointed, David. – [David L.] Well, it does.
– It’s an 18 year term. – [David L.] It does but if you go, – [Audience Member] And I’m
gonna be appointed at 60. – [David L.] The reason
presidents are appointing so young is that they’re hoping
they’ll be there for 40. If they know they’re
gonna be there for 18, they’re gonna appointment people that are more mature.
– One hopes. Well, I think so, I think so. – But it’s gonna require
a constitutional change and fat chance of that. (audience laughing) – [David L.] I think
your other point though has a lot to say for it. This would be changing
the court constantly and that’s harder. – Well, I don’t know because Supreme Court
of England and Wales, it’s constantly evolving
and constantly changing and nobody seems to have any
issues or concerns about that, or the other Commonwealth final courts where there’s a mandatory retiring age. It’s often thought that
it’s really healthy to have rejuvenation and fresh
minds being brought to bear and there isn’t really the dramatic swings but then these courts aren’t dealing with the mess of constitutional issues that the Supreme Court is dealing with. – [David L.] That’s the issue. – [Audience Member] That’s the
problem with the comparative is how polarized are the
societies and the parties, and how much power the Court’s exercising. Right, so I’m not sure
England is an apt comparison. But you know, the South
African Constitutional Court exercises significant power. – That’s true. – [Audience Member] I don’t know how, I know that they’re
polarized the way we are in terms of the parties. – [David L.] So you’re reasoning on the 2016 strategy, would it apply also to the
way in which both parties have held nominations to the lower courts in the last year, let’s
say, of a President? It would?
– Yeah. – [David L.] So that’s
equally illegitimate. – [Justice Collins] Yeah – [David L.] I think maybe that’s sort of where this idea
kind of germinated. I’ve sat through very ugly sessions where Senators from each party are accusing the others
of holding nominations and you held more than I held, and what about this person,
what about that person. John Roberts was held and
didn’t make it the first time. You know, we all know people,
we can all recite people that have been held. They’ve both been doing
it for some time now. Maybe that just, that kind
of crept up on us maybe and that’s really as well illegitimate. They should have voted. – Yes, exactly. – [Audience Member] But
I think it is a problem for your view, David, because your constitutional text analysis, your original analysis, it’s seeming that the historical practice was very different. There’s much more of
an historical practice of doing what this David is talking about in the last year of a President’s term and one potential difference is that the U.S. Supreme
Court is different. It’s the only federal court the Constitution requires
the existence of. Judges can’t sit by
designation, they can’t visit, it’s a real big deal if the have eight and they’re split, they’re
evenly divided, right? The impact on the Supreme Court of being on the receiving
end of this behavior is unlike any other federal court. But that’s not just an argument about the text of the Appointments Clause or the original understanding. – Yeah. Well. (laughs) (audience laughing) – [David L.] You opened up a can of worms. – Yeah! (laughs) (audience laughs) – [Audience Member] But
tomorrow you’ll talk about something much less controversial like the institution of judicial review. (audience laughs) – [David L.] One day, stay tuned. Thank you very much. (audience applauds)