Insulation from the winds of political change. Protection of minorities from the majority’s tyranny. Such is the jargon describing the United States Supreme Court’s role in government. Once a judge ascends to our highest court, firmly seated to exercise life-long power, the judge is expected to embrace a duty of impartiality, rendering decisions reflecting “neutral” legal principles, not partisan politics.
The reality of judging presents something quite different from this pristine vision. Even in uneventful presidential elections, entanglements emerge between the Supreme Court and politics. But the current election season has produced an alchemy that promises the presidential election extraordinary influence on the Court’s membership and decisions. What makes for special circumstances? Answer: a particularly polarized electorate, the presumptive selection of an outsider candidate for the Republican Party, Justice Antonin Scalia’s death, an aging Court, and the Republican Senate’s unusual success in avoiding confirmation hearings to fill the Scalia vacancy.
Assuming, as appears most likely, that the general election will present Donald vs. Hillary, let’s consider how these candidates will approach judicial appointments. We should also evaluate the likely fate of President Barack Obama’s pick for Scalia’s replacement, Judge Merrick Garland. To process all this properly, let’s begin by studying what the Framers intended for our Constitution’s judicial appointment process.
The bottom line about judicial appointments in our constitutional scheme: politics are baked into the cake! Our Framers envisioned that the President’s nomination of a particular candidate might encounter a shove-back from the Senate, which has power to reject nominees. This is not “new” news: even in the early 1800s, Supreme Court Chief Justice John Marshall propelled the Court into bitter political disputes, particularly those concerning the reach of federal power. Since then, the Court has dealt with issues touching an array of controversies: continental expansion, Native American rights, slavery, segregation, abortion, homosexual rights. As Alexis de Tocqueville observed, political issues often become legal issues in the United States. And it is the Supreme Court’s job to settle the hardest ones.
Highly politicized confirmation battles are therefore an integral part of the constitutional design. Significantly, this political quality to a judge’s job does not end upon confirmation. Although federal judges hold a duty of impartiality, our governmental processes send a different message. For years after confirmation, a judge carries the baggage of the confirmation ordeal. Why else do newspaper reports describe judges with a modifier: Judge X, a Bill Clinton appointee, Judge Y, a George H.W. Bush appointee, Judge Z, an Obama appointee? These media reports suggest that that the President will be getting something during the judge’s tenure. That “something” is presumably ideological loyalty, which the President might expect in return for the precious gift granted to the judge: a life-long, prestigious judicial appointment. Ordinary rules of human interaction suggest that the candidate’s duty of loyalty and gratitude to the President will linger after the judge’s initial oath in office. Whoever wins the upcoming presidential election hopes to enjoy this reward from his or her judicial picks. Sometimes justices disappoint their nominating President, but usually not.
“Whatever the election’s outcome, the next President surely will have a significant, long-lasting impact on the Supreme Court.”
What then would be the effect of Trump and Clinton on the Supreme Court? Considering Trump first: in an unusual maneuver, Trump listed eleven potential nominees to the Court. All are conservative; all are white; all are (roughly speaking) a Scalia clone. The net result would be a similar Court to Scalia’s Court: four reliable liberals, four reliable conservatives, and middle-of-the-road Justice Anthony Kennedy controlling many case results.
Trump’s move is intriguing. Is he asking the American people to vote to “elect” or endorse this slate of potential justices? Surely that’s inconsistent with the Constitution’s view that the Supreme Court should be above politics and majority preference. Or—more likely—is he simply telling voters that he favors a conservative Court? A look at his list sends a clear message that he intends to nominate deeply conservative, white people to fill vacancies.
If Clinton—not Trump—wins, several scenarios might unfold. Immediately after the election, the lame-duck Republican leadership may fear that Clinton would choose a younger, more left-leaning nominee than Merrick Garland. If the Democrats win the Senate, this Clinton nominee might sail through to confirmation after everyone takes office. The safer route for the lame-duck Senate might be to proceed on Garland, a potentially more consensus nominee than a Clinton pick. This scenario could also play out before the election if Republican leadership concludes that Trump lacks sufficient popular support to defeat Clinton.
A Supreme Court with Garland would be more left-leaning than with Scalia. That said, Garland has tended to support law enforcement in criminal cases, and his views may not be far from Scalia’s. Justice Scalia had a mixed record on criminal matters, including votes supporting criminal defendants on search and seizure rights, sentencing, and statutory interpretation. In terms of work product, Garland would likely write fewer dissents than Scalia. Scalia’s dissents were numerous and forceful, representing his most compelling contribution to our national jurisprudence. Garland tends more toward calm consensus.
If the lame-duck Senate refuses to proceed on Garland’s nomination, then Clinton could either embrace Garland’s nomination or nominate someone else. So far, Clinton has been cryptic, saying only that she supports President Obama’s chosen course. This approach contrasts with Bernie Sanders’ more strident declaration that he would nominate only a candidate promising to overrule the campaign finance decision, Citizens United.
Whatever the election’s outcome, the next President surely will have a significant, long-lasting impact on the Supreme Court. The current Court contains several elderly justices whose tenure may be ending soon. The oldest justices include two liberals (Justices Ruth Bader Ginsberg (83) and Stephen Breyer (77)) and the centrist Justice Kennedy (79). An ideological shift in the Court’s membership will alter constitutional law on our most vital issues, affirmative action, abortion rights, immigration, health care, and regulation of corporate money in political elections … just to name a few.