Thread: A president under investigation for impeachment has never appointed a Justice. Not Nixon, not Clinton, not Andrew Johnson. Never.
Democrats should make clear that if the GOP destroys this tradition, they will expand the Court to 15 in 2021 without filibuster.

2/ Let me be clear about this tradition: The Justices had the good sense not to resign under Johnson, Nixon, and Clinton during their scandals. But the tradition is obviously right: No president facing impeachment should be able to shape the Court hearing his own case...

3/ Clinton’s only 2 appointments were in this first 2 years (RBG and Breyer). His impeachment scandal didn’t emerge until 1997. Stevens was 77, but didn’t retire. There was ample speculation at the time that he held on because of the impeachment scandal. Rightly so.

4/ Nixon was a similar story: His 4 appointments were in his 1st term, pre-Watergate. William Douglas had been on the Court for 36 years and was in terrible health, but he resigned only after Nixon resigned. (He was a complicated guy. His colleagues tricked him into resigning...)

5/ Kennedy had a duty not to resign until the Russia investigation had been completed. Maybe there is some unknown illness. We can let history judge Kennedy, his career, and this retirement decision.
But it’s not just a retirement that threatens the legitimacy of the Court.

6/ This Supreme Court will hear cases directly impacting Trump and the Russia investigation:
1. Double jeopardy and dual sovereignty (Trump’s potential abuse of pardons).
2. Subpoena for Trump to be interviewed
3. The constitutionality of Mueller’s office or maybe his removal.

7/ The GOP already played Norm-breaking and tradition-inventing hardball to get Gorsuch. McConnell lied when he made up a “tradition” about no appointments a year before a presidential election. Kennedy, Stevens, Brandeis, Cardozo, and Murphy are five famous examples.

8/ Let’s contrast O’Connor with Kennedy. It was widely reported that she planned to retire in 2001, w/her husband ailing. When it looked like Gore would win on election night, she reportedly said sincerely she couldn’t retire. (Evidence of a tradition of strategic retirement).

9/ Then O’Connor cast the deciding vote in Bush v Gore, and she knew she couldn’t retire until after the next election. She waited until 2005, risking the partisan control of her seat. This partisan strategizing of retirements is bad, but O’Connor understood: legitimacy matters.

10/ Rehnquist also did not retire, after 30+ years, though the reporting isn’t clear that was about Bush v Gore.
My point is, unlike McConnell’s big lie, there is a real tradition of presidents not appointing during legitimacy crises.
And we are in the middle of a big one.

11/ To the people complaining that I used the phrase “under investigation for impeachment”: I was obviously using a twitter shorthand for “under serious investigation for crimes that would lead to impeachment and removal.” Thanks.

12/ And to those relying on Whitewater investigation starting before Breyer’s appointment: Whitewater doesn’t compare to Watergate, Russia or even Clinton lying under oath. (BTW I stated at the time that Clinton should have resigned in Fall 1998)...

13/ A better counter-example is Iran-Contra. I haven’t seen that objection from any conservatives against my point. Maybe it’s uncomfortable to remember the Reagan administration was norm-challenged, too. But that’s the real historical counterpoint to my argument.

14/ The bottom line is that the GOP can wait until the investigation ends, or make a bipartisan compromise pick to avoid legitimacy crisis. Trump or Pence would still get an opportunity later to appoint with advice and consent. What’s so bad about bipartisan compromise?

15/ To clarify my historical claim: no president facing the specter of impeachment with existing concrete evidence of high crimes and misdemeanors has ever appointed a justice.
Iran-Contra and the start of Whitewater don’t count. Clinton’s perjury and Trump’s obstruction do.

PS: In the spirit of bipartisanship and de-escalation, I offer some thoughts on Judge Kavanaugh, on Trump's short-list. This might not be popular in my feed, but there is much to praise about Kavanaugh, and it could be a lot worse. https://shugerblog.com/2018/07/03/four-thoughts-on-judge-kavanaugh/