Months before Supreme Court Justice Antonin Scalia’s sudden passing, Court watchers began presenting these four numbers as a sober warning:
Because Justices Ginsburg, Scalia, Kennedy and Breyer were all well over 75 when candidates began exploring 2016 presidential bids, it was safe to assume that the next president would be called upon to nominate at least one (if not two or more) Supreme Court justices. Scalia’s death has only increased the intensity of the political battle for control of the Court.
Would you go left or right?
The unexpected departure of the Court’s most vocal conservative suggests that whoever fills Scalia’s seat could shift its ideological weight to the left for the first time in decades. The Supreme Court of the United States (SCOTUS) is sharply split along ideological lines: Justices Ginsburg, Breyer, Sotomayor, and Kagan are the Court’s liberal voices; until Justice Scalia’s death, he and Justices Roberts, Alito and Thomas filled out the Court’s conservative wing.
Justice Kennedy—a Reagan appointee—falls somewhere right of center, making his vote the deciding factor in particularly contentious decisions. Though Kennedy has been known to drift to the left on important issues, such as upholding Affordable Care Act subsidies and legalizing same-sex marriage, most of his decisions are ideologically conservative. As a result, he has tended to reinforce the more powerful conservative wing of the Court.
The Supreme Court wields significant power as the final arbiter of the nation’s most important legal issues, and SCOTUS has worked hard to downplay its ideological divide—a divide that many believe undermines the Court’s credibility. Justices push back against the idea that they are political players and often issue unanimous decisions, but those decisions tend to be in cases where the outcome is less politically significant. When the Court issues a high number of 5-4 decisions in politically charged cases, as it has in recent years, the illusion that SCOTUS stands above politics disintegrates, damaging public perception of the Court.
The truth, however, is that the Court has been political since its inception—interpretation of the Constitution is a highly political endeavor; after all, ideological disagreement is what
sends a great number of cases to SCOTUS in the first place. Though Justice Scalia often claimed that his originalist interpretation was the only valid interpretation of the document (adhering strictly to the text as well as to the framers’ intent), and though there are many who share his views, scores of legal scholars and many Supreme Court justices before he disagreed.
No way, no how.
Given the Court’s tremendous political import, it was inevitable that Senate Republicans would throw up roadblocks to the confirmation process; what was surprising was the swiftness with which Senate Majority Leader Mitch McConnell vowed to block any nominee. McConnell made the announcement barely an hour after Justice Scalia’s death was confirmed. And on Tuesday, the Senate Judiciary Committee announced that it would not hold hearings for any Obama nominee. That could prove to be a dangerous position for Republicans.
Since Scalia’s death, many in the GOP have argued that “the American people should have a say” in who is chosen to fill Scalia’s seat. In other words, Republicans want the next president to pick Scalia’s replacement. Setting aside the fact that the American people elected President Obama—twice—Supreme Court vacancies do not usually go unfilled simply because it is an election year.
Perhaps most notably, Justice Kennedy was appointed by President Reagan and confirmed by a Democratic Senate during an election year. That is not always the case; some appointments have been delayed. Usually, however, election year nominees are, at the very least, considered by the Senate.
It’s not at all clear that the GOP’s gamble will pay off come November. It’s hard to predict what effect the Supreme Court fight will have on voters, but prevailing wisdom suggests not much. Most voters will watch the nomination unfold through their own ideological lenses and side with their respective party’s views.
A few Republican Senators have, nonetheless, resisted the GOP leadership’s call to block a
vote. Maine Senator Susan Collins, for instance, said in a statement:
“More than any other appointment upon which the Senate is called to pass judgment, nominees to the Supreme Court warrant in-depth consideration given the importance of their constitutional role and their lifetime tenure. Our role in the Senate is to evaluate the nominee’s temperament, intellect, experience, integrity and respect for the Constitution and the rule of law.”
A few days later, Collins went further. She told CNN, “It is the duty of the Senate, under the Constitution, to give our advice and give our consent or withhold our consent. I believe we should follow the regular order and give careful consideration to any nominee that the president may send to the Senate.”
Republican Senator Mark Kirk of Illinois, who holds President Barack Obama’s former state senate seat, wrote an opinion piece for the Chicago Sun Times in which he explained why he believes the president should put forth a nominee and the Senate should give that nominee fair consideration. Not surprisingly, much of his argument details his respect for the Constitution.
Whether additional senators will follow remains to be seen, but former Supreme Court Justice Sandra Day O’Connor, who retired from the Court in 2005, also weighed in. O’Connor said in an interview that she disagreed with Congressional Republicans on whether to leave Justice Scalia’s seat vacant until January 2017.
"We need somebody in there to do the job and just get on with it,” O’Connor said. “You just have to pick the best person you can under these circumstances, as the appointing authority must do.”
Someone to do the job.
Given the political climate and the vitriol surrounding President Obama’s plan to go forward with a nomination, it may be difficult for the White House to find someone who is willing to undergo the grueling Senate confirmation process in the first place—particularly if it means
there is little to no chance they will end up with a seat on the bench.
Now that Nevada Governor Brian Sandoval has officially removed himself from the running, it’s unclear whom the White House will turn to next. There are, however, a few familiar names circulating in the press, jurists who are likely to be on President Obama's short list:
- Sri Srinivasan, 48, was born in India and immigrated to the United States when he was four years old. He would be the first Asian-American to serve on the Court. Srinivasan clerked for conservative appeals court Judge J. Harvie Wilkinson, as well as for Sandra Day O’Connor. Currently, Srinivasan serves on the Circuit Court of Appeals for the District of Columbia; he was confirmed for that position by unanimous vote in 2013. It’s hard to imagine how Republicans in the Senate would argue that Srinivasan was unfit for the Supreme Court after such a resounding approval of his confirmation to the DC Circuit.
- Jane Louise Kelly, 51, was born in Greencastle, Indiana. She graduated from Harvard Law School in 1991 and went on to devote the bulk of her career to working as a public defender. Kelly won confirmation from the Senate for her seat on the 8th U.S. Circuit Court of Appeals by a vote of 96-0. Again, she is a candidate to whom Republicans would have a difficult time saying no—she has been a tireless defender of the rights of criminal defendants and has had an impressive career both as an attorney and as a judge.
- Last, but certainly not least, it is widely rumored that President Obama may select acting Attorney General Loretta Lynch. Lynch, 56, was born in Greensboro, North Carolina and earned her J.D. at Harvard Law School. She is the first black woman to serve as United States Attorney General and would be the first black woman to serve on the United States Supreme Court.
Tom Goldstein of SCOTUSblog believes Attorney General Lynch “is a very serious possibility.” Goldstein points out that, among other things, Lynch recently underwent a thorough vetting process for her position as AG, and was a career prosecutor; it would certainly be difficult for Republicans to claim she is too far to the left.
No matter whom President Obama nominates, the fight over whether to hold confirmation hearings will be less about the individual's qualifications than about preventing anyone from filling the seat.
Quite a gamble
In a high-stakes election where GOP leaders are extremely uncomfortable with their front-runner, Republicans are betting an awful lot on winning the White House in the fall. If they
lose, Democrats may retake the Senate as well, which would mean that either Hillary Clinton or Bernie Sanders would pick the next Supreme Court justice.
President Obama, a former Constitutional Law professor, is very clear about his judicial philosophy: he doesn’t believe in judicial activism. He said as much in his book, The Audacity of Hope. A former community organizer, Obama has never believed it is the role of the Court to solve all progressive dilemmas; he believes in changing minds before changing laws. Like Justice Ruth Bader Ginsburg, Obama believes that when the Court acts before the country is ready (decisions like Roe v. Wade, which legalized abortion, and Brown v. Board of Education, which integrated public schools in the South), it can cause more harm than good.
On Tuesday, the President reaffirmed those beliefs in a post on SCOTUSblog, pledging,
First and foremost, the person I appoint will be eminently qualified. He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity. I’m looking for a mastery of the law, with an ability to hone in on the key issues before the Court, and provide clear answers to complex legal questions.
Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law. I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.
Whether or not his potential successors share that philosophy remains unclear.
By preventing President Obama from appointing someone to the Court who shares his philosophy of judicial restraint, Republicans risk the appointment of a real liberal activist— someone who might be less willing to let progressive ideals percolate before serving them to the public. It’s a risk that will pay off only if the GOP wins the White House, and that’s a pretty long game to play.