Three Anti-Partisan Constitutional Conventions for Congress
I’m still drafting my article on “The Anti-Partisan Principle,” but here are three constitutional conventions that I’ve distilled from the partisan precedents that relate to Congress:
One political party may not: (1) alter the structure of the judiciary in its favor; (2) use its supermajority to purge judges or expel members of Congress who belong to the other party; or (3) seize control of the presidency or the vice-presidency from the other party without winning a presidential election. This does not mean that these things never happened. It just means that we think that they are beyond the pale (though legal) now.
The first two concepts are straightforward. #1 comes from the Repeal of the Judiciary Act of 1801 (the “Midnight Judges”) and the failure of FDR’s Court-packing plan in 1937. #2 draws from the acquittal of Justice Samuel Chase and the way Congress has understood its expulsion/seating power since Reconstruction.
The last one is more surprising (or at least it was to me). The acquittal of Andrew Johnson and the way Congress applied the Twenty-Fifth Amendment during Watergate, though, do stand for the proposition that I’ve stated.
One last thing. The convention that one party may not alter the structure of the judiciary in its favor becomes ambiguous when there is an opportunity to substantially change the makeup of the judiciary because of some unnatural event. In other words, if three Supreme Court Justices happen to die in the next two years, few would think that President Obama and Senate Democrats were acting improperly if they nominate and confirm three liberals to replace them. If, however, those three Justices were killed at the same time by a terrorist attack or a plane crash, I think people would object rather strongly to the same approach by the majority party.