In part one of this four-part series, I explained how 75% of the Supreme Court justices appointed since Earl Warren’s retirement in 1968 have been made by Republicans, and that has caused the court to become increasingly more conservative over the last 48 years. In part two, I contrasted the differences between the progressive achievements of the Warren Court (1953-1968) with the regressive decisions made during the last ten years of the Roberts Court. Part three looked at the ideologies of the eight justices that currently serve on the court.
Today in this final part of the series, I want to look at how this election will definitely impact one Supreme Court nomination, very likely three, and quite possibly as many as five nominations to the court. And if that’s the case, it could well be ten, fifteen, possibly even twenty years before another President gets a chance to make another nomination to the Supreme Court.
With Antonin Scalia’s death in February, there’s already one vacancy on the court, leaving it with an even 4-4 liberal/conservative split. At the very least, the election will determine how that vacancy is filled.
The Scalia Vacancy
When it was announced on February 13, 2016 that Antonin Scalia died overnight, conservatives immediately panicked. Republican Presidents had tried to flip liberal seats six times in the last half-century, succeeding twice (once spectacularly) and achieving middling success two other times. But now, for the first time in half a century, a Democratic President would finally have a chance to turn the tables and flip a conservative seat.
And in doing so, he’d have a chance to turn the court’s conservative majority, which they’d held onto for four or five decades (depending how you count the justices) into a 5-4 liberal majority.
Moreover, Scalia was no mere swing-vote centrist like an Anthony Kennedy or a Sandra Day O’Connor. He was a hardcore conservative, fourth most conservative on the Martin-Quinn scale in the entire history of rating the court, second only to Clarence Thomas as the most conservative current member of the court. Thomas’ appointment had radically changed the court by replacing one of the most liberal justices ever rated with the single most conservative justice ever. And now the President had the opportunity to return the favor.
But no-drama Obama, ever the pragmatist, knew that another Thurgood Marshall or William O. Douglas could never be confirmed by a Republican Senate. In the current polarized political climate, they couldn’t even be confirmed by a Democratic Senate while the filibuster still remained. (The filibuster has been eliminated for other judicial nominations, though other procedural hurdles remain, but the Senate has retained the filibuster – for now, at least – for Supreme Court nominations.)
So he picked someone the Senate Republicans couldn’t reasonably refuse: Merrick Garland. Left of center, to be sure, but more in the mold of a David Souter than a Sonia Sotomayor. Someone who has more federal judicial experience than any Supreme Court nominee in history. And at 63, the oldest nominee since Lewis Powell, who was 64 when he was nominated by Richard Nixon – so someone who conservatives might feel might not be around quite as many generations as, say, someone as young as Clarence Thomas was, who was a mere 43 when he was nominated and confirmed. Thomas wasn’t the youngest ever (that was Joseph Story, who was only 32 when he was nominated in 1811), nor even the youngest of the 20th century, but he is the youngest to be nominated since Earl Warren’s retirement.
And most importantly, Obama picked someone the Republicans had previously praised. Someone a majority of Republicans had voted to confirm for previous judicial nominations. Someone Senator Orrin Hatch of Utah (who had recommended Ruth Bader Ginsburg to the Clinton Administration) had said he would help confirm in 2010 if Obama were to nominate for John Paul Stevens’ seat that ultimately went to Elena Kagan, and who Hatch in 2016 said Obama should nominate a mere five days before Obama actually nominated him.
In other words, someone the Senate Republicans couldn’t reasonably say no to.
But that assumed that Senate Republicans were reasonable people. Republicans instead have stonewalled, refusing to even hold hearings. The nomination has now set a record for the longest confirmation wait, breaking the previous record set by Louis Brandeis who went on to become one of the most respected Supreme Court Justices in history.
Republicans claim that voters should decide with the November election who should pick the next Supreme Court justice. Never mind that voters already did decide that in 2012. Never mind that Anthony Kennedy was confirmed in Ronald Reagan’s final year.
Naturally, Republicans are hoping that a GOP Presidential victory in November will give them a chance to retain a conservative majority on the court for yet another generation.
And if Hillary Clinton wins? Most likely, the Republican Senate will try to rush a confirmation vote overnight without even holding hearings, which aren’t a requirement, for fear that Clinton will instead choose to nominate someone younger and more to the left than the moderate compromise that Obama tried to appease them with. And if Democrats also take back the Senate while retaining the White House, you can take that prediction to the bank.
If Clinton Wins…
Scalia wasn’t the only old jurist on the court. And other vacancies are likely in the next four years.
If Clinton wins, either Merrick Garland will be confirmed or Clinton will nominate someone else who will likely be younger and there’s a good chance will be more liberal. Either way, it flips the court to a 5-4 liberal majority with someone like Garland or Breyer as the swing vote instead of Kennedy.
But in addition, there’s a good chance that two older liberal justices may choose to retire and up to two conservative seats may also become vacant within the next few years.
Ruth Bader Ginsburg is 83 and has twice battled cancer. While she might relish the influence that comes with being the senior member of a liberal majority on the court, there’s a good chance that she’ll choose to retire within the first two years of a Clinton presidency if Democrats also recapture the Senate. One study found that justices were 168% more likely to retire within the first two years of the election of a president of the same political party as the president who nominated them. While Ginsburg wasn’t ready to retire when Obama was elected, I’ve suspected for some time now that she’s been waiting for a female president to choose her replacement. If she does retire under a Hillary Clinton presidency, that would help lock in a liberal seat for another twenty to thirty years.
Stephen Breyer turns 78 in mid-August. If he also chooses to retire, that’s another liberal seat that could be solidified for twenty to thirty years.
And, incidentally, both were nominated by Bill Clinton, so the press will have a field day chattering terribly sexist nonsense about how his “First Lady” will be choosing their replacements.
Anthony Kennedy is 80. While he may choose to hold on hoping for a Republican President in 2020 to replace him, if he feels a Clinton re-election in 2020 is possible, he may not want to wait until he’s pushing 90 to retire. After nearly three decades on the court, he may be tired and ready to enjoy some time off, particularly if he no longer has the exciting role of more often than not being in the majority (and on the occasions when he is in the majority, it won’t be because of him). And I am absolutely not wishing ill-will on anyone, but we all reach an age where some decisions are no longer ours to make, and he simply may not have the option of waiting for another Republican to occupy the White House.
And Clarence Thomas, a mere 68 despite already serving 25 years, has made some noise about considering retiring no matter who is elected, although his wife now denies those rumors. Maybe he’s just trying to scare conservatives into voting. Maybe he was serious but his wife or his conservative cronies have or will talk him out of it. But maybe he really is serious. Maybe he doesn’t care for being the actual voice of the hardline conservatives on the court now that Scalia’s gone. Maybe he has health or other personal issues to address. Maybe he wants to rake in big bucks in a way that he kind of can’t while he’s on the court (despite all the money his wife is paid to lobby on issues like the Affordable Care Act that just happen to eventually make their way to the Supreme Court). Or maybe he’s just bored. Maybe a quarter century at one job is enough, or like many of us, maybe he just wants to be retired at 68 and enjoy his hobbies.
We certainly can’t expect either Kennedy or Thomas to leave office while a Democrat is in the White House, but it’s entirely possible.
If Trump Wins…
If Donald Trump wins, the script is flipped. The Senate will reject Merrick Garland’s nomination without even a hearing and then Trump will name someone far more conservative in his place. Trump’s publicly-released list of potential Supreme Court nominees includes eleven ulta-conservative possibilities, including repeatedly mentioning William Pryor of Alabama and Diane Sykes of Wisconsin. Pryor was Alabama’s deeply conservative Attorney General who has called Roe v. Wade the “worst abomination in the history of constitutional law,” someone so extreme that his nomination to the 11th Circuit Court of Appeals was filibustered by Senate Democrats until a deal finally allowed him to be confirmed in 2005. Sykes, a former justice on the Wisconsin Supreme Court who now serves on the 7th Circuit, has issued incredibly conservative rulings barring enforcement of the birth control mandate in the Affordable Care Act, upholding voter suppressive voter ID laws, and prohibiting cutting off government funding to anti-gay organizations that were going to be denied funding for violating anti-gay discrimination laws.
So if Trump is elected, Scalia’s replacement will be someone pretty much as conservative. A 5-4 conservative majority will remain locked in place.
In addition, there’s a good chance Anthony Kennedy will very likely take the opportunity to retire under a Trump presidency. Perhaps he will have qualms of Trump’s judgement, but perhaps he will persuade himself that Trump’s advisers will guide him to make choice akin to George W. Bush or Ronald Reagan’s judicial choices.
And though relatively young by Supreme Court standards, it sounds like Clarence Thomas may take the opportunity to retire under a Trump presidency as well. That locks in a 5-4 conservative majority for a generation.
And based on the actuarial tables, there’s no assurance that Ginsburg and Breyer can hold on for four more years. Should Trump have the opportunity to replace one or both, conservatives could have a 6-3 or 7-2 majority on the court for another 20 to 30 years.
So many people all over the political spectrum seem convinced that Trump won’t last four years as a president. They imagine that he will either get bored and resign, or that even his GOP allies will eventually be forced to impeach him. That doesn’t help us. If Trump’s gone, we already know who his replacement will be. President Pence would be more than happy to appoint people at least as conservative as the worst people on Trump’s list.
The Next Four Years May Determine the Next Twenty
The next president will replace Scalia and will very likely replace two other justices nominated by previous presidents of their own party (Ginsburg and Breyer if Clinton is elected, Kennedy and Thomas if Trump is elected).
In addition, there’s a not insignificant chance that the next president will also be able to nominate replacements for the other two justices nominated by presidents from opposing parties as well.
Should Clinton have that opportunity, she could lock in a 5-4 liberal majority on the Supreme Court for at least 25 years if she has the opportunity to replace Ginsburg and Breyer with similarly liberal justices, which is likely.
Should she also have the opportunity to replace either Kennedy or Thomas, that would lock in a 6-3 “Earl Warren-style” liberal majority. The only time we had six liberal members on the Supreme Court was from 1965 to 1968. And if both Kennedy and Thomas were to be replaced, which is unlikely but isn’t out of the question, we’d have an unprecedented 7-2 liberal majority for generations.
The remaining justices are all reasonably young by Supreme Court standards: Samuel Alito is 66, Sonia Sotomayor is 62, John Roberts is 61, and Elena Kagan is 56. Given that most Supreme Court justices these days stay on to their mid-70s on average, and sometimes into their mid-80s, none of them are expected to voluntarily retire within the next ten to possibly twenty years.
Which means that depending how things go over the next four years, the next president may well be the last president for quite some time to have an opportunity to make any Supreme Court nominations. Jimmy Carter didn’t get to nominate anyone. The president elected in 2020 or 2024 might not, either.
And, at the outside extreme, possibly not even the president elected in 2028 or conceivably even 2032. If Ginsburg, Breyer, Kennedy, and Thomas are all replaced within the next four years, that really could be it for ten, fifteen, maybe even twenty years. There’s an outside but realistic chance that after this next term, the next president who has a chance to nominate someone to the Supreme Court might not be elected until 2036.
And the precedents set by the Supreme Court over the next twenty years will extend many decades beyond that.
So in the immortal words of RuPaul: don’t fuck it up.