The Supreme Court: "That's My Vacancy."

 

Presidents come and Presidents go. Some leave a lasting impression. Franklin Roosevelt’s New Deal, continued by Harry Truman, still remains a popular topic of discussion, although much of it was dismantled by the Eisenhower administration. Lyndon Johnson’s Great Society built a socialist-looking America. Many programs such as black civil rights and government sponsored healthcare for the young and old, have survived but Nixon’s Republicans could not wait to tear down much of the Great Society and the wrecking ball continued under Reagan to remove even more.

The one area of federal government where a President’s mark can last for decades is in Supreme Court appointments. Since the end of World War II, only two Presidents, Truman and Nixon, have had four picks. Some have none. History may now be repeating itself. Following the death of Justice Scalia, there is a Supreme Court vacancy to fill. During Trump’s four year term, another three seats may become vacant. If so, his choices would influence the interpretation of the American Constitution for the next three or four decades.

The process of Supreme Court appointments is simple enough. The President names the appointee, subject to “the advice and consent” of the Senate. All appointees must go through a vetting procedure by both the Executive and Legislative branches of government. This is no small thing. Every decision, ruling and opinion of the appointee is studied for bias. The Senate Judiciary Committee holds public hearings, interviewing the candidate, often with public demonstrations in the background.

An appointee is not chosen for his or her Party affiliations but for ideology. A Democratic appointee is expected to be pro-choice, pro-big government, anti-big business. A Republican appointee is expected to be pro-life, pro-business and support the traditional interpretation of the 1^st and 2^nd Amendments.

After Justice Scalia’s death, the Senate refused to give President Obama’s appointee, Merrick Garland, a hearing, despite his being an uncontroversial pick. The reason given by Senate Majority Leader McConnell was Obama was a lame duck President and the vacancy should be filled by the new President. I know of no precedent for such a proposition. Indeed, I am amazed that in America’s litigious society, no one took the Senate to law. Had a case been brought and taken on appeal to the Supreme Court, the Justices would have had to themselves decide on increasing their number! Suffice it to say the vacancy was not filled and now Trump has a Republican Senate majority to help approve his nomination.

Currently, the Court is divided equally between Democratic and Republican ideologies, so the new Justice will be the swing vote on cases brought. But voting does not always work out the way the nominating Party expects. There is a pertinent story concerning Earl Warren becoming the Chief Justice of the Supreme Court. In 1952, as Governor of California, Warren represented Eisenhower’s only serious rival for the Republican nomination for President. The two men struck a deal. If Warren withdrew from the race and if Ike won the Presidency, Ike would nominate Warren for the first vacancy on the Supreme Court.

In 1953, Chief Justice Vinson died and Warren succeeded him. Ike kept his word with no worries: after all, Warren was “one of us.” However, before Vinson’s death, the Court had heard the Brown v Board of Education case on racial segregation but had reached no decision. Warren wanted to be involved and persuaded his fellow judges the case should be re-argued so he could participate. After that hearing, Warren lobbied his fellow judges and, to Ike’s horror, the Court unanimously ruled to desegregate public schools as soon as reasonably possible. When Ike heard the verdict, he was heard to yell, “If I had known what that bastard would do, I never would have appointed him.”

Under Democrat Senator Harry Reid, then the Senate Majority Leader, the right of the Senate to filibuster judicial appointments was reduced. Now it only applies to the Supreme Court. If you are a Democrat, this might appear a relief because it means the Senate Democrats can block Trump’s choice through a filibuster which can only be defeated by a vote of 60 Senators.

Incoming Democrat Minority Leader, Charles Schumer, and his fellow Democrats have some political calculations to make.  If they filibuster Trump’s Supreme Court pick, McConnell and the Senate Republicans could use the so-called nuclear option to change Senate rules and eliminate the filibuster for the Supreme Court. That would mean in future a simple Senate majority would be sufficient for a confirmation vote.

Justice Ruth Bader Ginsburg – may her bright eyes continue to shine - made headlines this summer for saying she feared for the country and the Supreme Court should Donald Trump be elected. She has now acknowledged the inevitable. In a short question-and-answer session before the Jewish Federations of North America, Ginsburg said the most immediate impact of last week’s election on the Supreme Court is that it will get a new ninth member. “There is an existing vacancy, and President Trump will fill it,” she said. “Then, perhaps, Congress will do some work.” She could have added, “Be careful what you wish for.”