The Supremes Are Back, Front and Centre

Two weeks ago, my blog anticipated the retirement of Justice Anthony Kennedy from the Supreme Court. Kennedy, 81 years old, has now decided to go. Immediately, D.C. went into a frenzy. Mind you it always does when a vacancy occurs on the Supreme Court. It’s a field day for lobbyists and the media, let alone the politicians. I do not use the word ‘frenzy’ lightly. The last Trump appointee, Neil Gorsuch, must have felt he was in a Reality TV show as the President turned the nomination into show biz. Presumably, the latest nominee will receive similar treatment.

If you are going to follow the story over the next few weeks and, possibly, months it is important to know the rules. The Constitution grants to the President the right to nominate justices to the Supreme Court. However, all nominations are subject to the advice and consent of the US Senate. I’ve never understood the advice part but consent is clear. The Senate is no stranger to refusing confirmation of nominees. Ronald Reagan nominated Robert Bork to the bench. Senate Democrats and Republicans alike remembered Bork’s role in Nixon’s Saturday Night Massacre. Bork didn’t stand a chance of getting the Senate nod. When George W. Bush nominated his family lawyer, Harriet Miers, to the Bench, the choice was universally lampooned. Miers withdrew in the knowledge that the Senate would never confirm her.

The Senate’s nuclear weapon on appointments was the filibuster. To defeat a filibuster required 60 votes. By 2013, President Obama was stymied so badly by Republican filibusters which held up numerous approval of lower court judges and cabinet nominees. Vacancies on the bench and unconfirmed cabinet members were hampering both justice and government departments. To end the delays, Senate Democratic leader, Harry Reed, triggered a change in Senate rules. No longer would a filibuster be available to the opposition for lower court appointments and cabinet nominees. Consent by a simple majority would suffice.

What goes around comes around. Four years later, the Republicans took advantage of the rule change by ramping it up. Mitch McConnell, the Senate Republican majority leader, had a rule change passed, removing filibuster rights for Supreme Court nominations. This ensured that conservative judge Gorsuch’s appointment would be approved. The next vacancy to be filled by President Trump will not have to overcome the Senate filibuster. So, what can the Democrats do to defeat a nomination within the Senate rules?

Once the President makes his choice, the Senate Judiciary Committee of eleven Republican and ten Democratic senators will consider it. They will question the nominee and examine the testimonies of witnesses. This process can take days and, indeed, weeks.  In all probability, the committee will vote on partisan lines but if something scandalous or unacceptable is discovered, the committee could decline the nomination.

Assuming the committee approves the nomination, it goes to the Senate for ‘and up and down’ vote. Currently, the Senate is split 51/49 in favour of the Republicans. If one Republican senator refuses approval, the vote is tied and Vice President Pence will have the deciding vote. Thus the Senate Democrats need all their 49 votes plus two Republican senators to reject a nomination. This is not an impossibility. Senators Susan Collins and Lisa Murkowski both support abortion rights and voted against the bill that would have unwound Obamacare. Murkowski may be opposed to another conservative judge. Collins this weekend stated on CNN’s “State of the Union” she would not vote for a Trump nominee who would not support Roe v Wade. Add into the mix that Arizona Senator John McCain is ill and may not be able to vote with the Republicans, a Trump appointee may have a hard time getting approval.

In addition, Democrat senators could resort to extreme procedural moves, for example refusing to attend the Senate and denying a quorum. I can find no precedent for this. One thing is certain. The nomination will have little to do with merits but everything to do with politics.  Another conservative justice on the Bench will likely mean a 6-3 majority for the political right. This is fine if you are white, wealthy and conservative but not if you’re poor and a person of colour. What will happen with abortion rights, healthcare, gun control and control of money in politics? From my standpoint, nothing good happens if the Court is politically and ideologically biased.

However, Congress and the Supreme Court has never failed to provide surprises. In 1937, FDR celebrated an election win with a proposal to increase the size of the Supreme Court with the addition of six new justices “to help with the heavy work load.” FDR was angry with the Court for ripping up the first New Deal programmes. The proposal went to Congress where the Democrats enjoyed heavy majorities. They turned FDR down. The message was, “don’t mess with our Institutions and the separation of powers.”

In 1952, Eisenhower had a serious rival for the Presidency, Earl Warren, the popular governor of California. The story goes that Warren agreed to drop out of the race for the White House and if Ike won - virtually a certainty - Warren would be nominated for the next Supreme Court vacancy. In September 1953, Chief Justice Fred Vinson died and Ike was a good as his word. Warren was nominated and became the next Chief Justice. “Why not,” argued Ike, “he’s one of us.” Well, Warren was not “one of us.” He was particularly concerned with race relations and civil rights.

What followed was the 1954 ruling in Brown v The Board of Education of Topeka, Kansas. Warren persuaded all his fellow associate justices to bring a 9-0 decision that outlawed racial segregation in public schools. Ike was incensed. “How do you do this? You can’t change people’s minds, can you?” was his reaction. He is also believed to have said, “If I knew that son-of-a-bitch would do this, I’d never have appointed him.”

I cannot consider all the variables of the prospective new Bench appointment. They are infinite. For example, Congress will soon be in recess. Trump could make a recess appointment to avoid the fuss but it would only last a year and I doubt the nominee would agree. This one is a real “watch this space.”