Scotus and the Democrats

I’ve been teaching and writing for 30 years about the most important function the President of the United States has is to make Supreme Court nominations. It’s his most important job for two major reasons. First of all, any person appointed to the Supreme Court serves for life. Presidents only serve for a maximum of two terms or eight years. So the President’s legacy will serve much longer than he did through the Constitutional interpretation of his nominee. Secondly, through interpreting the Constitution, they are making law that everyone in the country has to follow and doing it much more frequently and easily than Congress ever can.

Most of you know Supreme Court Justice Anthony Kennedy decided to retire this past week. The Court for years has operated on a narrow partisan vote for most of the significant cases it has ruled on and that vote has often been 5-4 along ideological lines. Even though Supreme Court justices aren’t supposed to allow their political leanings to influence their judicial decisions, they do. So the four Democrats on the Court typically vote as one, four of the five Republicans typically vote as one and there has been one swing vote, a Republican, who is hard to pin down. That Republican is Anthony Kennedy, nominated by President Reagan, who took his seat in 1988.

Replacing Justice Kennedy will be President Trump’s second nomination in just two years which is highly unusual. His first, Neil Gorsuch, was nominated to replace Antonin Scalia, who died unexpectedly a couple of years ago. Scalia was a bedrock conservative so appointing another conservative to replace him didn’t alter the face of the Court. Remember that Scalia died while Obama was still President but Senate leader Mitch McConnell vowed that a vote would not be taken on Obama’s nomination to replace Scalia and it wasn’t.

The difference between Scalia and Kennedy is Kennedy’s independence. He studied cases that came before the court in Constitutional terms rather than political terms and that objectivity sometimes led him to vote with the Democrats instead of the Republicans. Regardless of who Trump nominates to replace Kennedy, it’s highly unlikely that scenario will happen again. Trump is widely expected by both Republicans and Democrats to nominate a Republican with long-standing conservative principles.

In doing so, the Democrats are wailing and gnashing their teeth because they believe the Court’s makeup will turn conservative for their lifetime. In fact, Time magazine’s cover has a picture of the Supreme Court Justices this week with the new nominee being a white outline while making the claim that the Court is now Trump’s.

I’m not nearly as pessimistic as most of my brethren are because some of the Justices are old and will be retiring shortly themselves. The most likely is Ruth Bader Ginsburg who was born on March 15, 1933. But it is well known she would prefer to die in office than to retire under a Republican President. She was nominated to serve by President Clinton and took her seat August 10, 1993.

Clarence Thomas, 69, is perhaps next in line. He was nominated by President George Herbert Walker Bush, taking is a seat on October 23, 1991, after a contentious nomination process in which law professor Anita Hill of the University of Oklahoma charged him with various charges of sexual harassment. He was approved by the Senate in spite of her claims.

So it’s just as likely that the next Supreme Court vacancy will be a Republican instead of a Democrat and if a Democrat is President during that time, the voting will change from 5-4 Republican to 5-4 Democrat.

That’s speculation on my part but at least a possibility. If Congress is still controlled by Republicans when the latter happens, a Democratic nominee will have a hard time getting confirmed or even having a chance to be confirmed. If Democrats control the Congress but we have a Republican President, then the opposite is true.

The only way a shift will occur is for a Democratic Congress to support the nominee of a Democratic President.

Certainly questionable at this time but not impossible.