Hillary & The Supreme Court

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 20^th, 2017.

Picking Scalia's Successor

Justice Scalia’s death over the weekend has kicked off a huge political fight over whether President Obama should (or has the right!) to name his successor. The argument against his doing so appears to be the idea that a President should not appoint a Supreme Court justice this close to an election where his name is not on the ballot. Better to let the “will of the people” be heard and allow the next President to make the pick. On the other hand, Obama has 11 months left in office, Supreme Court nominees move, on average, in about 75 days and even contentious appointees, such as Clarence Thomas, were announced, vetted, and confirmed in less than 4 months. 

The Republican talking point about the unprecedented nature of having a President appoint a new Justice this close to an election is simply not true. This is a very rare situation, and there is little precedent, but what does exist weighs against the GOP’s point of view. Anthony Kennedy was confirmed in February 1988, Justices Powell and Rehnquist got through in early 1972 (when Nixon was up for re-election, but without guarantee of winning), and Eisenhower put through three Justices as recess appointments in 1956. The only recent election year nominee who did not get through was Abe Fortas, who was also under criminal investigation at the time of LBJ’s attempt to elevate him to Chief Justice in 1968. 

What this is really about is the Republicans’ fear of losing their decades-long majority on the Court. And this is understandable. After all, the Court is the final arbiter of the most important Constitutional and statutory questions our country struggles with - from Bush v. Gore to Obamacare, same sex marriage to immigration policy, the modern Court has played a massive role in our country’s fortunes. From the 1930s well into the 1980s, the Court leaned left and even as Republican Presidents made the overwhelming majority of picks in modern times (the Democrats went from 1967 until 1993 without one), the dam did not fully break until the early 1990s and since then, a body of law has been erected on everything from arcane issues like employment mediation clauses and Tenth Amendment states rights to more familiar questions of voting rights and affirmative action that have benefited the conservative view of the law. Republicans will not willingly let that go. 

While replacing a jurist with one kind of legal philosophy with one who has a different one may seem novel, it was not always so. Thurgood Marshall, arguably one of the most liberal Justices of the 20th Century, was replaced by Clarence Thomas, one of the most conservative Justices of any time. Hugo Black, a lion of the New Deal, was replaced by corporate lawyer Lewis Powell, and on and on. That is just the way the quirks and vagaries of death and retirement work. On Election Night 2000, Justice Sandra Day O’Connor famously bemoaned the fact she would have to stay on the Court when it appeared Gore was going to win because she would not allow her seat to be filled by a Democratic President, so the idea that the Court, or its members, is not “political” is nonsense.

The President is well within his rights to name a new Justice and nothing in the Constitution stops him from doing so. When he won re-election in 2012, it did not come with an expiration date on his ability to appoint judges to the federal bench. The shameful display of blind obstruction by Senator McConnell and Republicans running for President should be called out as such. If the Senate wants to take up the President’s nominee and vote him or her down, they have every right to do so, but to set a precedent that no nominee of an opposing party will be heard solely for political gain should not stand. 

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