It’s not just Scalia’s seat. It’s also the next one.
Conservatives can retake the Supreme Court majority by obstruction alone — if they hold the Senate
After nearly a year of maintaining that the electorate should have a say in the next Supreme Court nomination, via the 2016 elections, a new idea has emerged on the Republican side: that GOP Senators should obstruct any nominee from a future President Clinton.
This has stirred up a great deal of national controversy, including a rebuke from the White House. But the radicalism and audacity of this plan remains under-appreciated — because its logic doesn’t extend only to filling Merrick Garland’s seat. It applies equally to future vacancies as well. And if the next Justice to vacate his or her seat is one of the Court’s liberals, this strategy would hand conservatives a majority on a seven-member Supreme Court — simply by dint of obstructionism.
These are the real stakes on November 8: control of the White House, the Senate, the Supreme Court — and the basic functioning of our system of government as the framers intended it.
The notion of permanent obstruction entered the national spotlight last week when John McCain promised a conservative talk radio host that “we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” First reported by CNN, this pledge spawned immediate headlines. But McCain’s subsequent line was more telling: he referred not to one seat — but to “three places on the United States Supreme Court that will change this country for decades.”
Recall that, with Scalia’s seat empty and Garland in the wings, the Supreme Court is currently deadlocked 4–4. The next three judges — those most likely to leave their seats through death or retirement — are Ruth Bader Ginsburg, age 83; Anthony Kennedy, 80; and Stephen Breyer, 78. If Ginsburg or Breyer vacate their seats, the Roberts reverts to its pre-Scalia balance of power, with a one-vote edge for conservative justices. All that Republicans need to do is hold the line and block all appointments.
Normally, that level of obstructionism would seem unthinkable. But recent history tells us that today, it’s to be expected.
The stakes are unusually high — because of the same combative obstructionism that has kept Merrick Garland off the bench.
Just in terms of the federal judiciary, there are now 101 current vacancies — 37 of which are deemed “judicial emergencies” by the court system due to the backlog of cases left unadjudicated due to the empty seats. When the Supreme Court is deadlocked, lower-court decisions stand, and Republicans are ensuring that lower courts are not filled out with Democratic nominees.
Meanwhile, due to Republican opposition to passing significant legislation, the next administration will likely have to follow in President Obama’s footsteps and rely on executive action to advance the public’s priorities — which can lead to court challenges, as we’ve seen on issues from immigration to climate change. In this way, judicial obstruction compounds the problem of legislative obstruction, inflicting gridlock from two directions.
But if the ninth Supreme Court seat is filled with a Clinton nominee, the overall balance of power in the court will swing away from the right — for the first time since Nixon filled liberal Earl Warren’s seat with conservative Warren Burger, in 1969, kicking off nearly a half century of conservative-majority courts. The consequences for the lives of every American, for decades to come and on nearly every issue imaginable, are tremendous. That certainly explains the intensity of conservative resolve on this issue. But such stakes alone are not a sound reason to blow up the system. It was a Democratic Senate, after all, that confirmed Warren Burger to the court all those years ago.
If reason and moral suasion won’t convince Republicans to seat new Justices, however, all is not lost. There is one path left.
In 2013, with Republicans filibustering a slew of President Obama’s nominees, Harry Reid and the Democratic caucus changed the rules: they invoked a limited form of the so-called “nuclear option,” abolishing the filibuster for most presidential nominations. At the time, however, they left the filibuster intact for Supreme Court nominations.
As Reid now notes, it may be time for that exception to end.
“I have set the Senate so when I leave, we’re going to be able to get judges done with a majority,” Reid told Lauren Fox of Talking Points Memo this week. “They mess with the Supreme Court, it’ll be changed just like that in my opinion,” Reid said, snapping his fingers together.’”
Of course, Reid is retiring. A rule change like this would have to be enacted by the next majority leader — which, if Democrats win the majority in the Senate, would likely be Chuck Schumer. If, and only if, Schumer becomes Majority Leader and Clinton is elected president, the threat (or reality) of the nuclear option to end the filibustering of Democratic nominees presents a clear path to ensuring that, as Republicans have insisted all year, the American people have their say in the composition of the next Supreme Court.
That might seem radical. But the real radicalism is the Republicans’ willingness to buck history by blocking presidential appointments without limit (notwithstanding the tortured musings from the likes of Ted Cruz). The Constitution may not require the Senate to “advise and consent” to the president’s court nominations on any particular time frame, but the Constitution’s framers did not intend for Senators to block all nominees until their preferred majority had control of the nation’s highest court.
And all of that, in turn, lays bare the significance of November 8 — not just in the race for the White House, but also for the Senate. Our grandchildren will be living with the results.