Why a historic fight over the Supreme Court is happening, why it is so unique, and what it means for the Court and its cases.
“originally published by Global Risk Insights”
The U.S. Constitution states in Article II, Section 2, the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint…judges of the Supreme Court.” While theoretically this is an invitation for stalemate when the White House and the Senate are controlled by opposing parties, the practice has generally been that the Senate partly defers to the president while exercising a constraining power on his range of nominees.
Since 1789, 36 out of 160, or roughly a quarter, of presidential nominations to the U.S. Supreme Court not confirmed by the Senate, involving 31 individuals as some were nominated repeatedly. Six of these 31 were later renominated and confirmed, meaning that 25 people of 151 (≈17%) nominated to the Supreme Court were never confirmed.
A major factor in a huge portion — or around 14 — of the nominees not being confirmed was partisan party politics, either because a president’s term was about to end or because the party controlling the Senate thought it would occupy the White House in the following election. Two extraordinary vacancies occurred in the 1840s, one during John Tyler’s presidency lasting almost 14 months and another bridging his presidency and that of his successor, James Polk, lasting over 27 months.
In the last 100 years, no vacancy has lasted even eight full months (most lasted for less time), with one exception in 1969-1970 that lasted almost 13 months.
Since the beginning of the twentieth century, six of eight presidential-election-year-nominations were confirmed by the Senate, but five of the eight vacancies had occurred the previous year. 1932 was the last year in which a vacancy, nomination, and confirmation all happened in an election year, 1938 the last election year a nomination and confirmation happened, and the last time an election year saw the Senate confirm an opposing party’s president’s nomination was in 1888.
Before Scalia’s death, the balance of the court was five conservative-leaning justices and four liberal-leaning ones, though one of the conservatives—Anthony Kennedy—is regarded as a “swing vote”. With the court now at something of a 4-4 deadlock, whomever takes Scalia’s seat will tip the court one way or the other.
Within hours of Scalia’s death, Republican Senate leaders announced they will not allow a vote until afterthe next president assumes office.
In the current hyperpartisan atmosphere, this is partly understandable: Senate Republicans risk enraging their base—already furious at moderates who compromise—and would be particularly vulnerable to challenges from fellow Republicans to their right if they were seen to hand a Supreme Court seat to Democrats, especially in five of the six Senate seats Republicans took from Democrats in 2010 and up for reelection this year.
The Senate has never taken more than 125 days to vote on a nomination. If Obama nominates someone soon and the Senate holds no vote for the remainder of his term, at least in that aspect, this would be by far unprecedented behavior; the seat would be vacant for at least eleven months, the longest period for a vacancy since the 1840s. Given the current politics, this seems almost certain. Krishan Y. Thakker, a Washington, DC-based attorney, noted that the “Senate’s refusal to consent” to Obama’s nomination is “expected.”
However, Obama’s term lasts a few weeks longer than the current Congress’s term is supposed to last, meaning he could appoint a Supreme Court Justice when Congress is in recess, as laid out in the Constitution and valid until senatorial review by the end of the following annual Senate session. A recent Supreme Court ruling makes this more difficult, however, and the last time this happened was underPresident Eisenhower in the 1950s, who made such appointments three times (one in the 1956 presidential-election-year).
What this means is that the court will basically be operating with only eight justices until the very end of Obama’s presidency and possibly longer. With Scalia gone, conservatives are down a vote, and in the likely event of a 4-4 tie, the ruling from the lower court stands and the case sets no national precedents, or the Court may postpone issuing a decision until its next term.
One or more of two sets of predictive models have seven current cases likely to have been 5-4 Scalia majorities that would now be ties. One such ruling would have limited Obamacare’s ability to force contraceptive coverage, favoring religious institutions. Another would have would struck down a lower court’s challenge to Virginia that it had deliberately molded a congressional district dilute minority voters’ power.
Yet another would have challenged an over nine-million-strong-group of public-sector unions’ abilities to collect dues from non-member workers. Other major cases involve affirmative action and abortion, and proponents of both are now more hopeful of their odds.
Another major case involved an executive order that is a pillar of Obama’s environmental and climate program.
Just a week earlier, the Supreme Court had issued a 5-4 ruling overturning a denial of a stay on the Environmental Protection Agency’s curbs on emissions from coal power plants; instead, the Court ordered the pause while a lawsuit from states challenging the new regulations made its way through the court system. The ability of the U.S. to follow the major Paris climate treaty is at stake, but now, when that case finally makes its way back to the Supreme Court, the Obama Administration and environmentalists havemore reason to hope, too.
If the vacancy lasts into the next term, when it would soon become the longest in modern history, many other major decisions will also be affected. Perhaps even more worrying is the setting of such a recent precedent for blocking a nomination for so long.