Supreme Court Confirmation Crisis?
Are we nearing the point where presidents won't be able to fill Supreme Court vacancies?
Jonathan Chait notes that the 63-37 margin by which Elena Kagan was confirmed is “five fewer than Sonia Sotomayor last year, 15 fewer than John Roberts got in 2005 and pales in comparison to the 96-3 coronation of Ruth Bader Ginsburg in 1993.” He wonders, “Is Kagan Obama’s Last Justice?”
Bear in mind that, before Obama picked her, Kagan was touted as the consensus pick most likely to gain Republican support. (Ginsburg had been head of the ACLU’s Women’s Rights Project — imagine a nominee like that getting through the Senate today, let alone with 96 votes!)
The Republican pretense that judicial nominees, and judicial nominees alone, should be entitled to a majority vote is a hangover from a tactical position the party took during the Bush era. Republicans “didn’t filibuster” Kagan because they didn’t have 40 votes to stop her. After the 2010 elections, their numbers will almost certainly increase to the point where even a moderate like Kagan stands little chance of clearing the 60 vote threshold.
And this has all taken place in a landscape where Obama has merely been replacing liberal justices with other, possibly less liberal, justices. Can you imagine what will happen if one of the five conservatives retires on Obama’s watch? It’s entirely possible that Senate Republicans will simply refuse to confirm any more justices, period.
Jonathan Bernstein sees a “real train wreck, a total stalemate” ahead:
The obvious question is: what would have happened if there were only 52 or 53 Democrats in the Senate, or for that matter 48 or 49. Elena Kagan appears, by all accounts, to be a mainstream Democratic nominee; she certainly wasn’t on the short list of liberal advocates, although she was broadly acceptable to most of them. Can any Obama nominee be confirmed to the Supreme Court next year? The problem here is that compromise is almost impossible to imagine over the Court. Does anyone believe that Thune, DeMint, and the other Senators who may be running for president next year could accept any nominee from Barack Obama? And, after Bob Bennett and the rest of the primaries this year, does anyone believe that more than a handful of Republicans will stand up to the threat of a primary?
Matt Yglesias goes a step further:
The question is sharpened further when we consider that Kagan was appointed to replace probably the most left-wing justice on the court. By most accounts, her ascension will shift the court slightly to the right. Antonin Scalia is 74 years old. Obviously, he’ll try to hold on to his seat until there’s another Republican in the White House but he may not make it. Is there any replacement a Democrat could make for him that would garner bipartisan support? I have a hard time seeing it.
Kevin Drum takes this to its logical conclusion:
So what happens if this becomes institutionalized? It means that no president with a Senate controlled by the opposite party will ever be able to place someone on the Supreme Court. So then what? Perhaps the new norm will become automatic recess appointments without even the pretense of a Senate hearing. And since recess appointments only last through the end of a president’s term (assuming he continually reappoints his candidates at the beginning of each new Congress), this would place a premium on justices resigning only when a congenial president is in office (already a well accepted norm) and doing it early in his first term in order to give the new folks at least seven or eight years on the bench. Keep this up for a couple of decades, and you’d essentially end up with a system in which incoming presidents replaced virtually the entire court during their first year.
Despite the fact that I agree that:
- Presidents are entitled to considerable deference in getting nominees confirmed
- Kagan should have been a slam dunk confirmation
- The process is getting increasingly frustrating
this all strikes me as overwrought. This is a nominee that got five Republican votes and had one Democrat vote against her. And now she gets a lifetime appointment to a body that has become essentially a sitting Constitutional Convention. With precisely the same voting power as Ginsburg or Scalia or any of the judges who got confirmed by a larger margin.
This falls somewhat short of a crisis.
But let’s say that the next Congress has 49 Senators caucusing as Republicans and 51 as Democrats. And let’s say that the current level of polarized tension remains. Both are distinct possibilities.
And let’s say that Antonin Scalia’s seat is vacated. It’s unlikely that he’d retire during Obama’s tenure and one hopes his health holds up but it’s not an absurd notion. What then?
Given a precarious position in the Senate and a vacancy with the potential to radically shift the direction of the Supreme Court, Obama couldn’t nominate an Elena Kagan or Ruth Bader Ginsburg and expect to see her confirmed.
Arguably, that’s not such a bad thing. The 2008 election was neither a rejection of Republican judicial philosophy nor a mandate for Democratic jurisprudence but rather a rejection of the excesses of the Bush years and an embrace of a fresh new face. And a major Republican bounce in the midterms would hardly be a call for more liberal judges.
Ah, but the mean old Republicans would just never allow any Democrat at all to replace Scalia! They’d have a two-year filibuster!
Nonsense. Obama would just have to get creative.
Yes, the atmosphere has gotten testier. But there’s also been a vicious cycle wherein the Senate comes down hard on very controversial nominees and presidents counter by nominating people who are ciphers. This, in turn, leads to digging up every bit of information that can be gleaned and then trying to come up with an Aha! movement out of the one of two interesting things the person has managed not to conceal.
Instead, maybe presidents should go back to the older tradition of nominating people that Senators know and like?
Rather than a liberal academic or appellate court judge, maybe Obama would instead pick a Democratic Senator. Yes, there’s less comity across the aisle than there was in the days of Sam Rayburn. But there are still a handful of Senators and Representatives and cabinet members and the like who command tremendous respect on both sides of the aisle. The kind of folks whose names always come up for the blue ribbon committees or the “bipartisan” cabinet appointments.
The Judiciary Committee would be an obvious place to start. Pat Leahy, the chairman, is a mite long in the tooth. But how about Russ Feingold (Rhodes Scholar, Harvard Law)? Or Chuck Schumer (Harvard Law)? Or Sheldon Whitehouse (UVA law, former US Attorney)? They’re all qualified for the Court and, so far as I know, well regarded by their fellow Senators. Surely, one of them could survive a filibuster from their colleagues? There are other Senators and Congressmen who are qualified and confirmable, too. My guess is that there are a hundred Democrats who could sail through without much of a problem. Or, hell, throw them a curve and pick a moderate Republican who’s friendly to the Democrats on social issues.