Notes on the Supreme Court Vacancy

February 16, 2016

The Committee for Justice wishes you a happy and healthy 2016 and thanks you for your interest in our work and your generous support throughout 2015.

 

CFJ President Curt Levey participated in a December 15 panel discussion on the 15th anniversary of Bush v. Gore, hosted by the progressive American Constitution Society.

 

The first interesting article on judicial nominations that we've seen in the new year is a January 3 Washington Post op-ed by Linda Hirshman, warning that "the next president may be practically powerless when it comes to [Supreme Court] appointments. ... [B]ecause the partisan divide is so deep, it may be impossible to get Supreme Court nominees confirmed." Hirshman notes that there are two paths to a "nomination deadlock":

 

"The more intractable scenario is that the White House and the Senate remain split beyond Inauguration Day 2017, and the Senate majority determines to block all Supreme Court nominees until the next election. Alternatively, if one party ends up winning both the White House and the Senate, the Senate minority could filibuster any [Supreme Court] nominees."

 

"A stalemate seems almost inevitable," Hirshman concludes. But we disagree. While scenarios that would produce a standoff and thus a long-term Supreme Court vacancy are certainly plausible, she substantially overstates their probability for at least these three reasons:

 

  1. When Senate Democrats eliminated the judicial filibuster in 2013, they made an exception for Supreme Court nominees. But that exception will be thrown aside the moment it stands in the way of the party controlling the Senate. As Curt Levey explained in a January 2014 piece at National Review Online: "There is no principled reason for the [Supreme Court] exception and the precedent of changing Senate rules with just 50 votes has already been set. Democrats created the exception just in case the next Supreme Court vacancy occurs under a GOP president."

  2. Hirshman's piece notes that "a mere nine Republicans voted to confirm Sonia Sotomayor in 2009, and five voted to confirm Elena Kagan in 2010." But even five such dissenting votes should be enough to prevent the majority party from blocking a Supreme Court nominee, given that neither party is likely to control more than 54 seats in the Senate -- the number currently controlled by Republicans -- anytime soon.

  3. The small number of GOP votes for Kagan and Sotomayor occurred in a context where Democrats controlled the Senate and Obama had a relatively free hand in selecting a Supreme Court nominee. A president with a greater chance of having his Supreme Court nominee rejected would not be oblivious to that fact and would presumably nominate someone with a moderate or stealthy enough record to make confirmation likely, whether on his first or -- recalling Justice Kennedy's nomination -- third attempt to fill the vacancy.

Hirshman focuses on a Supreme Court appointment by the next president. But even in the unlikely situation of a High Court vacancy occurring before President Obama leaves office -- a situation seemingly tailor made for a stalemate -- Obama would have a reasonable chance of gaining confirmation for a moderately liberal nominee named by this spring.

 

In a CQ Weekly article last month, Kyle Barry of the liberal Alliance for Justice pointed out that "the Supreme Court is different and I think that there would be enormous pressure on the Senate to fairly and efficiently consider someone who [Obama] nominated." Curt Levey largely agreed.

 

While noting that "If it's a controversial nominee, it's all too easy" for the GOP majority to delay until a new president takes office, Levey conceded that "you'd have enough Republicans who wouldn't want to stall what is a consensus [Obama] nominee."

 

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