Constitution Check: Will the new Senate approve any nominees to the Supreme Court?
Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, examines the potential for gridlock over a Supreme Court nomination, should such a vacancy occur over the next two years.
THE STATEMENT AT ISSUE:
“Republicans will have multiple backstops against unacceptable judicial nominees. Senator Chuck Grassley, as chairman of the Senate Judiciary Committee, could simply deny hearings to such nominees, just as Democrat Pat Leahy did to George W. Bush nominees when he was committee chairman in 2007 and 2008. If the nominee’s objectionable features surfaced only in the hearing, the Republican majority on the committee could defeat the nomination in committee. If the committee somehow reported such a nomination to the full Senate, Mitch McConnell, as the new majority leader, could simply refuse to schedule a vote on the nomination. And, of course, the Republican majority in the Senate could defeat a bad nominee on a straight up-or-down vote.”
– Edward Whelan, president of the Washington-based Ethics and Public Policy Center, a conservative policy think tank, in a commentary Wednesday on the website of the National Review magazine.
WE CHECKED THE CONSTITUTION, AND…
The concept of organized political parties, with sharp ideological differences dividing them, were unknown to those who wrote the Constitution, although they were entirely aware of – and fearful about – the development of strident factions. What they counted on, to enable the new government to function despite the conflict among those factions, were the divisions of government powers, horizontally and vertically. If any faction were to gain control of any branch or level of government, it could be checked by another elsewhere in the structure.
One of those checks, written into Article II on the Executive Branch, was to require the president to get the Senate’s approval for anyone being nominated to serve on a federal court, including the U.S. Supreme Court. But it probably was not in the minds of that early American generation that the check would be used as merely an obstructionist device, to frustrate a president’s ambitions.
Once political parties became a major feature of America’s governing structure, however, the possibility of gridlock over judicial nominations would emerge, and predictably did. One of the best-known examples occurred in 1968, when Chief Justice Earl Warren announced plans to retire, and President Lyndon Johnson named a sitting Justice, Abe Fortas, to replace Warren.
That year, of course, was a presidential election year, and the Republicans – who were a minority in the Senate – did not want the Chief Justiceship to slip out of the grasp of the next president, whom they hoped would be a Republican. So a Republican-led filibuster kept the Fortas nomination from coming to a vote, and the nomination failed. (As matters turned out, Republican Richard Nixon was elected to the White House, and he succeeded in placing Warren E. Burger into the chief justiceship.)
There was another precedent set in that episode: Warren did not leave the court as he had planned, but stayed on until his successor had been approved. Justices since then have tended to believe that they should not leave the court under circumstances where a vacancy would remain open for any considerable period of time; the court simply does not function well with only eight members, when there is always the risk of a 4-to-4 deadlock.
Now, in the wake of Tuesday’s congressional election, with Republicans controlling the Senate, the potential is there for gridlock over a Supreme Court nomination, should a vacancy occur there over the next two years. It should be noted that, as of today, this potential remains in the realm only of a possibility; no current member of the court is known to have any plan to step down in the next two years.
President Obama, of course, will retain the power to nominate judges and Justices for two more years, until he leaves office in January 2017. Assume, then, that a situation did arise in which a vacancy arose on the Supreme Court. What would happen then?
The President could get a nominee through the majority-Republican Senate if he were to consult with GOP leaders in advance and put forward a consensus nominee. There may well be a member of the Senate itself who could meet that definition. Or there could be a judge now sitting on a federal court who had had no trouble getting through the Senate confirmation process and thus might be acceptable as a Supreme Court nominee. It would have to be a judge, however, whose record on a lower court was middle-of-the-road.
It also could be a nominee who was a member of a racial minority, or was a woman. There could be political costs in resisting such a nominee, especially if that person had established a national reputation for integrity and sound judgment.
But if the President were to choose a nominee with a distinctly liberal record, on legal issues or policy questions in general, the Republican-controlled Senate surely would resist, and would now have available the controls to carry out resistance. Depending upon when a vacancy on the Supreme Court had occurred, the prospect of keeping a vacancy unfulfilled for a prolonged period would carry political risks, opening the GOP majority to a protest that it was preventing the Supreme Court from functioning with a full bench. The Supreme Court itself might even try to appeal to the Senate to act, although that could be awkward.
Even so, the prize of a seat on the Supreme Court has enormous value to either side in the nation’s current state of partisan polarization, and that is not a gift that either would easily yield. Any battle that developed over it would be highly visible, and pressure groups from all along the political spectrum would try to exert influence over it. It could provide a highly valuable lesson in constitutional governance, or another demoralizing exercise in partisan gridlock.
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