Here’s a spoiler alert: whoever President Obama nominates to replace the late Justice Antonin Scalia, they almost certainly will not be confirmed this year. Yes, Senate Majority Leader Mitch McConnell’s (R-KY) announcement that “this vacancy should not be filled until we have a new President” is unprecedented, unprofessional, and a number of other words that my editor will not let me print on this website. But as a matter of raw power, Senate Republicans control 54 seats. Absent some absurd event — maybe eight Republican senators will simultaneously quit to pursue their dreams on Broadway — the GOP will retain that majority until the next Congress is sworn in next January.
Now here’s another spoiler alert: there’s no guarantee that anything will change for the foreseeable future. If 11 months from now, Hillary Clinton or Bernie Sanders places their hand on a Bible and recites the oath of office, the new president will still need a majority vote in the Senate to confirm their Supreme Court nominee. And if McConnell is still majority leader, there’s absolutely no reason to believe that he will treat a new Democratic president any differently than the old one. Just look at McConnell’s record on lower court appointments.
In the 13 months since McConnell became majority leader, the Senate has confirmed exactly 2 judges to federal appeals courts — and one of those two, Judge Kara Farnandez Stoll, was confirmed to the United States Court of Appeals for the Federal Circuit, a largely apolitical court that primarily deals with patents. By comparison, the Senate confirmed 6 of President George W. Bush’s appellate judges, 8 of President Bill Clinton’s, and 10 of President Ronald Reagan’s during the same 13 month period in each man’s presidency.
The Unbridgeable Divide
Senator McConnell is undoubtedly a pioneering figure in the field of Senate obstructionism, but it’s not hard to imagine a seat on the Supreme Court remaining open indefinitely if the parties’ fortunes were reversed. If you are a Democrat, close your eyes for a few seconds and imagine that, in the final year of the Ted Cruz’s presidency, Justice Ruth Bader Ginsburg unexpectedly dies. Imagine further that Ginsburg’s death strips liberals of their majority on the high Court and potentially gives Cruz the power to install a new deciding vote. If Harry Reid were the majority leader, what would you expect him to do? And if your own Democratic senator voted to confirm Cruz’s nominee, how much money would you give to their primary opponent?
No, the Supreme Court vacancy crisis cannot be laid solely at the feet of Mitch McConnell. Rather, it is another manifestation of the same broken constitutional system that gave us the last government shutdown. When different parties control different branches of government, our system requires consensus to prevent a breakdown of governance. But the two parties now have disagreements that are so fundamental that such agreement is impossible.
It wasn’t always this way. Beginning in the late 1930s, a national consensus began to form around the appropriate role of the judiciary in a representative democracy. As the Supreme Court established in United States v. Carolene Products and similar cases, the overwhelming majority of issues belong to elected officials. The judiciary should intervene when lawmakers violate an explicit right protected by the Constitution, or when they engage in invidious discrimination, or when they enact laws “which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.” But outside of these narrow categories, the people would rule through their representatives.
That left plenty of questions for judges to ponder. Should campaign donations be treated as a form of political speech protected by the First Amendment? How should the Constitution’s protections for criminal defendants be implemented? What kind of discrimination does the Constitution prohibit? And what do we do with explicit provisions of the Constitution that call for protections of unenumerated rights, while still ensuring that judges remain the junior-most partners in the policymaking process?
But, for the most part, the consensus around Carolene Products‘s brand of judicial restraint held during the few decades leading up to President Obama’s election. As I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, liberals remembered the dark ages prior to Carolene Products, when the Supreme Court routinely implemented a conservative economic agenda through its decisions, while conservatives cared more about erasing decisions such as Miranda v. Arizona or Roe v. Wade than they did about implementing economic policies through the judiciary.
I argue in Injustices that this consensus held through the Reagan, Bush I, and Bush II administrations, but, in retrospect, an early sign that it was beginning to fray was Reagan’s failed nomination of Judge Robert Bork to the Supreme Court. As a younger man, Bork opposed the Civil Rights Act of 1964 — with its bans on discrimination by private business — based on a self-parodying theory of individual rights. The principle behind a nationwide ban on whites-only lunch counters, Bork wrote, “is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness.”
Bork later repudiated this statement. Nevertheless, the fact that Republicans widely perceive Bork as a fallen martyr, and not as a man rightfully denied a Supreme Court seat because of the inexcusable poor judgment he showed before joining the bench, is a pretty clear sign that the parties have irreconcilable differences regarding the appropriate role of government.
Whatever fissures the Bork nomination revealed in the consensus around judicial restraint, those fissures burst open not long after President Obama took office. NFIB v. Sebelius, the first Supreme Court case attacking Obamacare, was a direct attack on principles established by the Supreme Court more than 200 years ago. The Federalist Society — an influential conservative legal society whose members, at least until Justice Antonin Scalia’s recent death, included three Supreme Court justices — has become a breeding ground for plans to render federal agencies like the Environmental Protection Agency impotent. United States senators speak openly of restoring long-discredited legal doctrines that would invalidate the minimum wage and the right to unionize. Justice Clarence Thomas, a sitting member of the Supreme Court, embraces an interpretation of the Constitution that would strike down federal child labor laws and the same Civil Rights Act Bork once railed against.
Simply put, there is no such thing as a consensus nominee that can unite the sort of people who view Justice Thomas as a hero with the sort of people who view him as a crank. And so, here we are, prisoners to a constitutional system that depends upon agreement among philosophically incompatible factions. Things fall apart; the centre cannot hold.
So what can be done? Well, one option is to live with the system we have. We can wait months or even years for Scalia’s seat to be filled, perhaps watching other seats become vacant in the interim. After all, there are three other justices on the current Court who are very elderly. Depending on how the next election goes, there could be four vacant seats on the Supreme Court before another justice is confirmed. And when this impasse is finally broken, we can watch as the seats are filled by the sort of justices that are chosen by a party that knows it must those seats to someone who is thoroughly ideologically vetted. The cost of having a justice go rogue is too high.
Or we could find a better way of selecting judges.
To be clear, the judicial selection crisis is just one symptom of a much greater constitutional disease. So long as we elect our national legislature separately from our chief executive, there will always be a risk that irreconcilable factions will control one of each branch of government, and that a shutdown, a debt ceiling breach or a similar event will occur — and perhaps continue indefinitely. The American system exacerbates these issues by layering additional veto points on top of our separation of the legislature and the executive. Bicameralism, the power of legislative leaders to halt progress, the committee system, and the filibuster all create new obstacles in a constitutional system already riddled with them. And then there is the fact that the Senate is so hilariously malapportioned — a voter in Wyoming has 66 times as much representation as a voter from California — that its decisions can hardly be classified as representative of the nation as a whole.
Since it’s unlikely that America will perform major constitutional surgery any time soon, however, there are also plenty of models for alternative methods of appointing judges. In Alaska, for example, governors are required to select judicial appointments from a list provided by the state’s Alaska Judicial Council, a seven member body chaired by the state’s chief justice. Notably, a majority of the seats on this council are non-political appointees.
This process led to an unusual moment of consensus between former Republican vice presidential candidate Sarah Palin and President Barack Obama. As governor, Palin selected Judge Morgan Christen from a list of candidates provided by the Judicial Council for an open seat on the Alaska Supreme Court. Two years later, Obama appointed Christen to a federal appeals court.
California follows a slightly different model that could also inform reformers seeking to improve the federal judicial selection process. In that state, appellate judges and state supreme court nominees are chosen by the governor, and then confirmed by a commission consisting of the state’s chief justice, its attorney general, and “a presiding justice of the courts of appeal.” Confirmed judges take their seats upon their confirmation, but must face a retention election during the next gubernatorial election year.
Notably, this process enabled California Gov. Jerry Brown (D) to appoint three unusually talented justices to his state’s highest court. Justices Goodwin Liu, Mariano-Florentino Cuéllar, and Leondra Kruger all belong on any Democratic president’s list of potential U.S. Supreme Court nominees.
In any event, it would be premature to settle upon a particular reform to the federal selection process right now. There are many models that need to be studied, both in the states and in other nations, that could inform a constitutional amendment fixing the current process. Because, that is what it would take, a constitutional amendment, in order to change the system we have now.
As such amendments are virtually impossible to pass, it’s unlikely that the Constitution will be amended any time soon to change the way to pick judges — if it even can be amended at all. Yet, despite the considerable inertia that exists right now, it is at least possible that a bipartisan consensus could form around such an amendment if multiple seats remain open on the Supreme Court for years.