During his vacation last month on Martha’s Vineyard, President Obama predicted that he would have the opportunity to appoint Supreme Court justices before the end of his term. Yes, he used the plural, “justices.” He said, “What’s preventing us from getting things done right now is you’ve got a faction within the Republican Party that thinks solely in terms of their own ideological purposes… how do they hang on to power… that’s why I need a Democratic Senate. Not to mention the fact that we’re going to have Supreme Court appointments…”
The president was speaking at a fundraiser. He was most likely seeking to fire up the Democratic contributors, not reflecting any inside information about forthcoming retirements. Nonetheless, it is creditable to think that he may have the opportunity to reshape the Court. Four of the current justices are more than 76 years old. Ruth Bader Ginsburg is the oldest at 81. But, Antonin Scalia is 78 as is Anthony Kennedy. Stephen Breyer is also over 76. All have served on the Court for more than twenty years.
Ginsburg and Breyer are a part of the liberal wing of the Court. Kennedy is frequently the swing vote in important 5-4 verdicts like Citizens United v. FEC in 2010 and the Hobby Lobby case this past June. Scalia is generally thought of as the intellectual anchor of the conservatives.
The retirement of any one or two could alter the shape of the Court, but if Kennedy or Scalia were to leave during Obama’s remaining years, the character of the Supreme Court could be at stake.
The president links this to the Senate elections this November for an obvious reason. Control of the Senate hangs in the balance. Many analysts think the Senate will be controlled by Republicans next year. Whichever party is in the majority, the margin will be close.
If the Republicans become the majority, it will be difficult to gain confirmation of an Obama nomination. The problem will only become greater if it appears to portend a change in the ideological makeup of the Court. If Scalia, the reliably conservative voice on the Court, or swing-vote Kennedy were to leave, Republicans would fear that an Obama appointment would create a liberal majority.
If Senate Democrats retain a majority, Obama nominees may still not be easily confirmed. Republicans could use their ability to filibuster. This would require a super-majority of 60 votes in order to end the debate and permit confirmation.
The Senate created a precedent last November allowing a simple majority vote to end debate on presidential appointments. However, Supreme Court nominations were left as an exception, the threshold remains at 60 senators.
In a remarkable interview released by Elle magazine, Justice Ginsburg was jarringly candid. Acknowledging the political calculations behind her decision to stay on the Court, she declared, “If I resign any time this year, [the president] could not successfully appoint anyone I would like to see in the court.”
Ginsburg pointed to the use of the “nuclear option” to end filibusters for district and circuit court nominees and the failure to include the Supreme Court. She said, “[The Senate Democrats] took off the filibuster for lower federal court appointments, but it remains for this court. So, anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.” This appears to be a thinly veiled signal to the Senate majority that if they wish to see Obama appoint Ginsburg’s successor, they should use the nuclear option to end filibusters on Supreme Court nominees.
I have long believed that Supreme Court exception would last only until a minority first filibustered a Supreme Court nominee. The majority’s base would demand that the precedent be used again to squash the filibuster.
This should alarm us. It seems clear that the federal judiciary is becoming increasingly politicized. The Supreme Court, more than any in recent memory, is polarized along an ideological fault line. The idea that the Court is driven by the same extreme political polarization as the other branches is corrosive to its prestige and authority.
Allowing a simple majority of the Senate to overcome a filibuster will only deepen the problem and threaten to make it permanent. Presidents (backed by a majority in the Senate) will no longer have to consider the views of the minority in making a nomination. Only the president’s own party would matter.
Rather than using the nuclear option to expand the scope of filibuster-proof judicial nominations, the Senate should restore the force of Rule XXII which states that cloture requires “three-fifths of the Senators.” This would restore balance to the decision a president must make in choosing a nominee to serve for life on the federal bench.