With a possible Clinton landslide in the offing and control of the Senate within reach, Democrats are already speculating about appointments to the U.S. Supreme Court. This chatter grew stronger when Senator John McCain mused that Senate Republicans may try to block any nominee Clinton selects, an unprecedented attempt at obstruction that would effectively neuter one of the three branches of government.
But before people muse on the possibility of a second Warren Court, we need to keep a few things in mind. Even if the Democrats retake control of the Senate and even if they eliminated the filibuster rule for Supreme Court nominees, politics may still come into play.
First, it is possible that the Senate may take up the nomination of Judge Merrick Garland before Clinton is inaugurated. Of course, the chief judge of the D.C. Circuit Court of Appeals is eminently qualified and should have been confirmed months ago, but regardless, if he does get a hearing and vote, that may well be the one and only vacancy filled before the 2018 mid-term election, in which case, all the sturm und drang will be rendered moot.
But let us speculate that one or more justices decide to hang up their robes. Justice Ginsburg is 83, Justice Kennedy is 80, and Justice Breyer is 78. And let us further speculate that Senate Majority Leader Schumer does away with the filibuster rule, so now a nominee need only get 51 votes (or 50 + a putative Vice President Kaine) to be appointed.
While the Senate may go Democratic next month, it is unlikely that the Dems will have more than say, 53 seats (and that would be a huge success). That is a very narrow margin to get a nominee through. Moreover, several Democrats, such as Heidi Heitkamp, Joe Manchin, Joe Donnelly, and Jon Tester are all up for re-election in 2018. If Republicans vote in lockstep against a Clinton nominee, these Democrats will be forced to take a tough vote if the nominee is more “liberal” or “progressive” than the average mid-term voter in a state like North Dakota, West Virginia, Indiana, or Montana.
This will put President Clinton in a tough spot. She may have the chance to change the make-up of the Supreme Court for 15-20 years, but at the expense of asking vulnerable Senate Democrats to vote in a way that could increase the chances the Republicans take over the Senate in 2018 or, run the risk of an embarrassing rejection of a nominee at the hands of her own party. Of course, this would be less of a concern if we did not live in such a partisan time and Supreme Court nominees typically received some (if not a lot of) bi-partisan support. But if President Obama’s experience is a guide, President Clinton will not be able to rely on such courtesy.
This conundrum presents one of the subtler forms of check and balance in our system and may result in more centrist nominees. My hope is that should Secretary Clinton be elected, she will pick well-qualified, but left-leaning judges (as is her right) and Democrats will see the bigger picture while realizing they will have to do all they can to save those endangered Senators the next time around. Of course, one person who would be hard to reject is a certain former constitutional law professor and Harvard Law graduate who will be looking for a new gig come January 20th, 2017.