One of the most important tasks the Constitution assigns to our presidents is the nomination of justices to the Supreme Court. The shape of the Court for decades may well be at stake in the 2016 election.
Very little of substance has been said by the candidates in either party about the types of appointments they might make. But, politics in America has become so polarized along party and ideological lines that we think we know.
It’s especially important because four of the members of the Supreme Court are approaching 80 years old. Liberal leader Ruth Bader Ginsburg is 82. The frequent swing vote, Anthony Kennedy and conservative anchor Antonin Scalia are 79. Liberal justice Stephen Breyer is 77. It seems likely that the next president will have multiple seats to fill on the court during his/her first term.
Whoever is elected president has an excellent chance of helping elect a narrow majority in the Senate, given the increasing tendency toward straight ticket voting and the number of vulnerable Republicans in the current majority.
This would afford that president a clear path to make lifetime appointments which could dramatically alter the Court. “Wait a minute,” you say, “what about the filibuster in the Senate, the minority matters.”
Here’s the rub. In November of 2013, the then-Democratic majority used a controversial parliamentary ploy to change how the filibuster is interpreted for judicial nominations. This change means that judges can be confirmed in the Senate with just simple majority support. The Democrats exempted the Supreme Court from that change. However, I believe it is self-evident that should a future minority block the Supreme Court nominee of a president of the other party, the precedents used to twist the rules for other federal courts, would be quickly employed to overcome that filibuster.
Presidents, in the past, because of the existence of the filibuster, have had to take the potential need for 60 votes to overcome a filibuster into account when choosing nominees for the federal bench. They understood the need to convince, at least some of the minority, of the nominee’s mainstream legal credentials. With the filibuster gone, so is that restraint on partisanship and ideology, raising the specter of an even more politicized Court.
Justice Ginsburg, in a 2014 interview in Elle magazine, was asked if she might leave the Court to permit President Obama (who still had a Democratic majority in the Senate at the time) to fill the seat. She declared “If I resign any time this year, [the president] could not successfully appoint anyone I would like to see in the court.” She was, of course, referring to the fact that the Senate left the Supreme Court out when they used the so-called “nuclear option” to change the filibuster rule for lower federal courts.
Consider this hypothetical for 2017, what if a newly elected President Hillary Clinton or PresidentBernie Sanders, with a Democratic majority in the Senate, nominated someone like Eric Holder or even Barack Obama. (Hillary Clinton was asked at a campaign rally in Iowa about appointing Obama. She replied, “Wow what a great idea.”) The GOP would go “bonkers.” We know how they feel about the president, and the Republican House held Holder “in contempt of Congress.” If this new justice were replacing Kennedy and/or Scalia, he/she would have a big impact on the Court, perhaps creating a liberal majority.
However, the new president need not consult the Republicans, consider their views, or worry about their votes in choosing his/her nominee, knowing that a reliable Democratic majority in the Senate would deliver confirmation.
If this warms the hearts of Democrats, they’d best think about the potential nominees of a Republican President Trump, President Cruz, or even President Rubio. (Ted Cruz has already called his support of John Roberts, “a mistake.”) If a new GOP president were able to nominate a new justice or justices to replace Ginsburg and/or Breyer, the Roberts court, already conservative, would become more deeply so and probably for a longer period into the future.
This danger of further politicizing the Court can be fixed on a bipartisan basis if the Senate will change the precedent and begin adhering to the actual language of the filibuster rule.