The Politics of the Supreme Court

The sudden death of Antonin Scalia has thrown one of the first big unplanned events into the 2016 Presidential campaign.  Justice Scalia was a hero to the conservative right.  The notion of pushing the court further to the left by allowing Barack Obama to appoint his successor is anathema to many on the right.

I'll also say at the outset that I have a real bias on this issue.  People who know me know I tend to support a wide range of sometimes quite liberal positions on some issues and quite conservative on others.  However, regarding the Courts, I can think of only a handful of cases in which I ever disagreed not only with Justice Scalia's finding, but his reasoning as well.  I admired him greatly and will miss his presence on the Court.

The relative randomness of Supreme Court Justices resigning or dying is a fact of our political system.  Jimmy Carter served four years without appointing a single nominee.  The elder George Bush also served four years and appointed two.

The appointment of Supreme Court Justices was at one time a fairly uncontroversial and nonpartisan event. Even when former politicians went to the Court, such as former President Taft, it was not seen as a threat by the other party.  Sure, there have been times from the beginning when nominees were rejected.  George Washington's nominee for Chief Justice, John Rutledge was rejected, even though he was already sitting on the Court (as a recess appointment).  The Senate rejected Rutledge, not because of his ability but because of his opposition to the Jay Treaty with Great Britain.  Similarly, James Madison's appointment of Alexander Wolcott was rejected in 1811, primarily due to Wollcotts support of Jefferson's Embargo Act in 1807.

Over time, however, the Court became much less political.  The Court itself developed doctrines to avoid addressing political questions by declaring them to be not justiciable.  Over time, the court became far less controversial and appointments focused more on qualification.

That began to change in the 1960's after the Court dove into highly controversial political issues such as racial discrimination, religion in government, and police behavior.  I don't mean to get into a debate as to whether the Court's involvement in such issues was right or wrong.  I only mean to point out that when it happened, Congress and the President both began to take a much closer look a the ideology of the candidates.

This heightened scrutiny became much more apparent in 1986 with President Reagan's nomination of Robert Bork.  The Senate, which had recently changed to a Democratic majority questioned and ultimately rejected the appointment, not because Judge Bork was unqualified, but because his opinions suggested he differed greatly in his approach to cases from the then rather liberal Burger Court.  After a negative media campaign by several left wing interest groups Judge Bork's nomination was ultimately rejected.

Since that time, both parties have focused on not only the qualifications, but also the political philosophy of judges, knowing that who sits on the court will ultimately decide whether legislation stands or falls, and whether new rights are recognized or diluted.  It has been largely the Republicans who have expressed frustration with the Court's willingness to involve itself in political issues and overturn legislation, but the Court has certainly been willing to overturn liberal legislation as well. Court balance therefore, is fought just as politically as the balance of the House or Senate.

Of course, Justices do not always vote as the President who nominated them intended.  At one point in the early 1990's eight of the nine Justices on the Court were Republican appointees.  The only Democrat was Justice Byron White, appointed by John Kennedy, who dissented in Roe v. Wade. Despite this, the Court rejected attempts to overturn its earlier decisions regarding abortion and a range of other decisions favoring liberal political positions.

There is a school of thought that politicians find unpopular Court decisions to be politically expedient.  A generation of conservative politicians ran on issues of repealing Roe v. Wade and other liberal decisions.  This help energize and encourage conservative voters to get out and support these candidates.  Had Roe v. Wade never removed the issue from politics, it likely would have energized people on the left to elect more liberal politicians to protect abortions through legislative action.  In other words, Congress and State legislatures were made more conservative as a reaction to the courts protection of this politically unpopular right.  More recently, the Court removed another political issue from debate by inventing a new right for homosexual marriage.  This issue likely would have deeply divided the Republican party for years.  Court action prevented that messy political debate and took an issue that likely would have been very helpful for the Democrats, and energizing support for Democratic candidates for years to come.

It seems, however, a little too cynical to believe the most politicians would want a policy decision to go against them in order to protect their career in fighting against it.  I have to think most politicians do not enter politics simply for a paycheck and a steady job.  Most of them could do much better in the private sector if that is what they wanted.  Politicians want to make political change, reshape society closer to their vision.  For this reason they see shaping the Courts, and most particularly the Supreme Court by populating the bench with people that share their world view.

This brings us to the current vacancy in the middle of the 2016 Presidential election.  Republican candidates and legislators alike want to deny President Obama the chance to appoint another liberal Justice to the Court, replacing a solid conservative.  At present, the Court has four reliable liberals, three reliable conservatives, and one conservative leaning moderate.  A fifth reliable liberal could block any conservative agenda for a generation.  The stakes are very high.

The Democrats have suggested that the world will somehow descend into chaos if eight Justices sit on the Court for some extended period of time.  Most decisions are not 5-4, making the ninth vote irrelevant.  Those few highly divided ones that go 4-4 will result in the lower court opinion being upheld.  In the 1960's the Democratic Senate refused to fill a vacancy on the Court for over a year, rejecting two Republican appointments in rather contentious fights.  It's not ideal, but it has happened before.  Government continues to function and little changes.

Republicans have argue that it is inappropriate for the President to nominate a replacement in an election year.  That is also an absurd argument.  There is no basis or precedent for the President not to act and make an appointment.  In fact, not doing so might be considered non-feasance of his office.. At the same time, there is no reason the Republican Senate has to approve the President's nomination. The Senate can drag out the process for months, then ultimately reject the nominee as has happened before.

Why then, are Republicans vowing not to consider any nominee rather than simply wait for one to come, argue about it for months, then reject it?

Republicans fear this strategy for a number of reasons.  First, the President may pick a candidate from a political popular group.  When President Obama nominated liberal Justice Sotomayor, Republicans had to trip over themselves to avoid appearing anti-Hispanic to the first Hispanic nominee ever.  Of course, since the Senate was majority Democrat at the time, opposing her would have had little effect anyway.  Say the President nominates an openly homosexual nominee.  Do the Republicans want to further alienate homosexual voters? Some opposition can make for bad optics even if there are other very different reasons for wanting to reject the nominee.  Once the nomination has a name and face associated with it, the opposition can become more difficult.

There is also the issue of if not now, what next?  Perhaps the President will nominate a more moderate candidate.  If the campaign outcome looks like the next president might be Hillary Clinton or Bernie Sanders, an Obama compromise choice might be a better option.  The President might even sweeten the appeal by picking an older nominee who is not as likely to spend such a long time on the Court.

At present, candidates on both sides are laying out extreme positions.  Democratic candidates are arguing that the President must appoint someone right away and that nominee should be someone who will reverse several recent decisions that came down with a conservative majority.  Republicans are trying to find a way to say the President should never make a nomination so late in his administration, while backtracking to say that if they were President, they probably would nominate someone regardless of when.

Both parties seem to be taking extreme positions for now.  But if the President puts forth a compromise candidate, usually someone who is sitting on a lower court and not known for political activism, there could be a confirmation.  Much of this may be whether the Senate sees a possible worse outcome if they wait until after the election.

As far as the campaign for President is concerned, I don't thing this issue will have much impact at all.  Candidates in both parties have taken positions very similar to others within their party, making it a non-issue for the primary.  If the position remains unfilled during the general election, the direction of the Court may be an issue for some voters.  Most, however, tend to focus more and the candidates themselves and the more immediate policy issues they are proposing.