Might we be losing the ability to fill Supreme Court vacancies?

The current Supreme Court features one octogenarian, three septuagenarians, two sexagenarians and three justices in their 50s. There have been some close confirmation battles to fill recent vacancies and — compared with most history of high court nominations — an increase in partisan/ideological voting.

As Jonathan Chait notes for New York magazine, in the last confirmation (of Elena Kagan, the current youngest justice at age 53) only five Republican senators voted to confirm her. Three of those five are now gone from the Senate and one of them — Richard Lugar of Indiana — was defeated for renomination by his own party in part to punish him for that vote.

As Ian Millhiser writes for ThinkProgress, the price paid by Lugar raises the likelihood that any Republican senators voting to confirm any future Obama nominees to the high court would be risking their political lives.

If, after January, Republicans take control of the U.S. Senate, and if, during the last two years of Obama’s presidency, a vacancy should occur on the court, what are the odds that any Obama nominee could be confirmed?

If Republicans united to deny a Democratic president the power to fill a vacancy, and taking into account the degree to which Supreme Court nominations have been thinly disguised votes on the future of highly-ideological and partisan issues such as abortion and campaign finance regulation etc., what are the chances that future Senates would behave differently if the president was of a different party than the Senate majority?

We aren’t talking about filibusters here. It’s true that when the Senate recently exercised the famous “nuclear option” to allow most appointees to be confirmed with a majority vote, the Senate left alive the power of filibusters in the case of Supreme Court nominees. But as that new rule was imposed by a majority vote, the rule easily could and probably would be extended to Supreme nominees if the need arose.

So the question is whether we are soon to enter a new era in which Supreme vacancies might stay open indefinitely until the same party controls the Senate and the White House or until some other kind of unprecedented new arrangement could be made.

Yes, by tradition it is not supposed to work this way. By tradition, the Senate has generally accepted qualified, scandal-free nominees even if they were from the “wrong” side of the partisan/ideological split. But the Constitution has no such requirement. And yes, the business of rejecting nominees on ideological grounds probably derives most clearly from the liberal rejection of Reagan nominee Robert Bork. So I’m not blaming this on the current Senate Repubs.

But in the new system of partisan/ideological warfare, how likely is it that the Supreme Court might be short a justice or two or three or four, when the president and the Senate majority are of different parties?

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Comments (4)

  1. Submitted by Ray Schoch on 04/22/2014 - 11:47 am.

    Wait a minute

    Not for a minute would I defend the Senate Democrats who kept Reagan’s nominee from the SCOTUS. That said, why let the current Republicans off the hook – ahead of time? The current corrosive partisan environment in Washington is not entirely the fault of Republicans, but it is in large measure something we should place squarely on their shoulders. Should Ginsburg retire, or some member of the SCOTUS die in harness after the mid-term election, and assuming that election swings the Senate into Republican control, who would Obama nominate, and what are the chances that person would find reasonably quick approval from the Senate?

    “If Obama favors it, we oppose it” tosses red meat to the lunatic base, but it’s not a reasonable basis for sane national policy, and it’s been the meme of the past 6 years. My short answer to the rhetorical question in the title is “Yes.”

  2. Submitted by John Roach on 04/22/2014 - 04:19 pm.

    Bork was voted on by the full Senate.

    His nomination failed, with 6 Republicans voting against him and 2 Democrats voting for him. He was not filibustered. He was viewed as an extremist, which by 1987 standards, he was. By current standards, he would fit right in on the conservative side of the court.

    It also didn’t help that as Solicitor General, he enabled Nixon’s Saturday Night Massacre, basically in exchange for a promise of nomination to the Court; a promise that Nixon was unable to deliver on due to his resignation, but that was later honored by Reagan. That sort of behavior didn’t play well on the national stage back in the ’80’s.

    Opposing a Supreme Court nominee for ideological reasons isn’t new. Nixon had two of his nominees rejected, and the history of withdrawn and rejected nominations goes back to 1795 when the Senate rejected John Rutledge, after his recess appointment by George Washington angered the Federalists.

    The system shows some worrisome signs, but it’s not obviously broken. Yet.

    • Submitted by RB Holbrook on 04/23/2014 - 09:24 am.

      Right vote, wrong reason

      Mr. Bork was, as you point out, rejected primarily for his role in the Saturday Night Massacre. According to Elliott Richardson’s account some years later, Bork also wanted to resign, but Richardson persuaded him to stay on long enough to fulfill President Nixon’s dictate. “Almost,” of course, only counts in horseshoes.

      Bork did have views that painted him as a judicial extremist, and a zealot for the power of the executive. The only difference between a Bork Court and the Court we have now is that Justice Scalia and Justice Thomas are much better on Fourth Amendment issues than a Justice Bork would have been.

  3. Submitted by Frank Phelan on 04/23/2014 - 09:52 am.

    More Bork

    As soon as the Bork nomination was announced, liberal groups were up in arms. But for weeks, opinion polls showed the public had virtually no concern or knowledge of Bork or his views.

    Once the public got to know him, through the Senate confirmation hearings, his numbers went negative in a big way.

    Maybe Ginsburg will pull a “Burger”. The then Chief Justice resigned in 1986 while the Senate was still in GOP hands. The writing was on the wall that the GOP Senate majority was on it’s way out in the fall elections. But according to the current narrative, Burger’s resignation was merely coincidence and not motivated by ideology. Yeah, right.

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