The Looming Supreme Court Crisis

Elena Kagan cruised to confirmation, but only because the Democrats have a giant majority in the Senate. Not only are they overwhelmingly likely to lose seats in November, it’s overwhelmingly likely in general that future Senate majorities will not have 59 members. Before the 111th Senate, the most recent congress to feature such a lopsided Senate was the 61–39 95th Senate of 1977–78. That was a Senate from a different enough era that we had two Democrats from Alabama, two from Georgia, and two from Mississippi. In modern times, in other words, there’s never been a Senate this lopsided and we shouldn’t expect the situation to recur.

Thus Jonathan Bernstein’s question:

Meanwhile, the real question here is what will happen in 2011–2012. As I said, five Republican Senators — Collins, Graham, Lugar, Snowe, and the retiring Judd Gregg — defected; Ben Nelson also defected, but said he would vote for cloture. The obvious question is: what would have happened if there were only 52 or 53 Democrats in the Senate, or for that matter 48 or 49. Elena Kagan appears, by all accounts, to be a mainstream Democratic nominee; she certainly wasn’t on the short list of liberal advocates, although she was broadly acceptable to most of them. Can any Obama nominee be confirmed to the Supreme Court next year? The problem here is that compromise is almost impossible to imagine over the Court. Does anyone believe that Thune, DeMint, and the other Senators who may be running for president next year could accept any nominee from Barack Obama? And, after Bob Bennett and the rest of the primaries this year, does anyone believe that more than a handful of Republicans will stand up to the threat of a primary?

The question is sharpened further when we consider that Kagan was appointed to replace probably the most left-wing justice on the court. By most accounts, her ascension will shift the court slightly to the right. Antonin Scalia is 74 years old. Obviously, he’ll try to hold on to his seat until there’s another Republican in the White House but he may not make it. Is there any replacement a Democrat could make for him that would garner bipartisan support? I have a hard time seeing it.