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The Supreme Courtís Coming Paralysis
The Daily Beast ^ | July 22, 2014 | Jeff Greenfield

Posted on 07/24/2014 4:00:50 AM PDT by 2ndDivisionVet

Why there’s really no chance President Obama will be able to appoint another Justice to the bench, regardless of what happens in November.

It’s a question that’s roiled the liberal universe for years: Why won’t 81-year-old Supreme Court Justice Ruth Bader Ginsburg resign from the Supreme Court and give President Obama the chance to pick her successor, in case the Senate turns Republican after the mid-terms?

Harvard Law Professor Laurence Tribe, one of the left’s jurisprudential heroes, had a ready answer to that question when it was posed to him at the University of California Santa Barbara late last month. There is, he said, not a chance in hell that this Senate would confirm her successor, no matter who he or she might be—not the way the process works today. And therein lies a tale about just how drastically the “advise and consent” process has changed, and why the smart bet would be on a paralyzed process, and perhaps even a Court with fewer than nine Justices, no matter what happens in November.

Once upon a time, the Senate took that “advise and consent” phrase of the Constitution literally: They sometimes advised, but almost always consented, to a President’s choice. From 1894 to 1967, only one Supreme Court nominee was rejected. (It was 1930, and as the Great Depression deepened, Judge John Parker’s alleged anti-labor and anti-civil rights rulings were deemed disqualifying). There were other controversial picks—lawyer Louis Brandeis was assailed as a dangerous radical when President Wilson named him to the bench in 1913 (and there was more than a hint of anti-Semitism in the opposition); Alabama Senator Hugo Black had to go on national radio to explain his membership in the Ku Klux after FDR named him in 1937.

But it wasn’t until 1968 that a President found his Supreme Court pick blocked. When Lyndon Johnson sought to elevate Justice Abe Fortas to the Chief Justice post to replace Earl Warren, a coalition of Southern Democrats and Republicans, angered by his liberal votes on civil liberties, his continued political counseling of LBJ, and some dicey financial dealings, successfully filibustered the nomination. (Republicans also hoped to stall the nomination, hoping their nominee could capture the White House in November. That strategy not only worked, but those financial dealings were to force Fortas off the Court a year later).

At that point, the process took a sharply different turn—to outright rejection of a nominee. President Nixon’s choice of Judge Clement Haynesworth to replace Abe Fortas was soundly defeated, 55-45, by senators who believed—not entirely accurately—that Haynesworth had demonstrated anti-labor and pro-segregationist tenancies in his rulings, and that he had had a financial interest in one of the cases he helped decide.

Nixon’s second nominee, Federal District Judge Harrold Carswell, may well have been the single least qualified nominee ever, fusing judicial incompetence with a political history of embracing white supremacy. Carswell’s reputation drew a famous defense by Senator Roman Hruska, who argued, "Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters and Cardozos.” (Hruskas’ choice of three Jewish Supreme Court justices was duly noted). Carswell’s nomination was rejected by a 51-45 vote.

In these two cases, something other than ideology was, at least ostensibly, at stake—qualifications or some kind of impropriety. That may be one explanation, perhaps, for the remarkably bipartisan nature of the votes. Nine Democrats voted for Hayneswroth; 17 Republicans voted against the nomination; 17 Democrats backed Carswell; 13 Republicans voted against him.

Not so in the case of Judge Robert Bork, whose background as a Yale law professor and federal judge made him clearly qualified on intellectual grounds. The case against Bork was, in the broadest sense of the word, “political”—that his views on privacy, civil rights, and other issues put him “outside the mainstream.” Senator Ted Kennedy unleashed one of the harsher assessments ever aimed at a high court nominee when he said: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government…” It was, to put it mildly, a reach. But the argument, along with Bork’s less than winning personality in the witness chair, led the newly Democratic Senate (with the help of six Republicans) to reject the nomination by a decisive 58-42 margin.

It was a faction of Senate Democrats that saved the nomination of Clarence Thomas in 1991. After the unprecedented charges and counter-charges—of sexual harassment, perjurious witnesses, and a nominee’s bitter accusation of “a high-tech lynching”—10 Democrats, from the still-significant moderate-conservative wing of the party, voted to confirm him.

The Clarence Thomas nomination was the last time a Senate controlled by one party approved the nomination made by the President of another party.

This might be considered highly significant, except that the Thomas nomination was the last time a President of one party offered up a nomination to a Senate controlled by the other party. By a quirk of the calendar, Bill Clinton faced two vacancies that opened up in 1993, when Democrats had a 57-seat majority; in the six years after Democrats lost the Senate in 1994, there were none. George W. Bush’s two nominations came when his party had 55 seats; there were no vacancies after Democrats won the Senate in 2006. Obama named Sotomayor and Kagan when his party had a near-super majority 60 votes; there have been none since the 2010 midterms sharply reduced the Democratic edge.

And while no President since George H.W. Bush has had to offer a nomination to an opposition controlled Senate, all recent Presidents have had the benefit of virtual unity in their own parties. Only two Republicans voted against Clarence Thomas: Vermont’s Jim Jeffords, who would bolt the GOP a decade later, and Oregon’s Bob Packwood, whose own entanglement with sexual harassment charges would force him out of the Senate four years later.

Since then, whether nominations have succeeded overwhelmingly (Ginsburg, Breyer) or with substantial opposition (Alito, Sotomayor, Kagan), only one member of the President’s party has ever voted thumbs down. (It was Rhode Island’s Lincoln Chaffee, now the state’s independent governor, who voted against Samuel Alito’s confirmation).

This might suggest that the future of any prospective Obama nomination will turn on who winds up controlling the Senate; except, of course, it doesn’t. When Senate Majority Leader Harry Reid invoked the “nuclear option” last November, which ruled the filibuster out of order with respect to lower federal court judges, he explicitly exempted the Supreme Court. That, of course, only explains what a Senate minority can do. It’s the current political climate that tells us what Senate Republicans, whether in the majority or minority, are likely to do.

The best way to see how different the terrain is today is to look back on past contentious nominations and ask why a determined minority did not filibuster them to death. The short answer comes from the last scene of Ibsen’s Hedda Gabbler. After the protagonist shoots herself, a shocked Judge Brack exclaims: ‘Good God! But people don’t do such things!” Even during the intensely passionate debate over Clarence Thomas’ qualifications, behavior, and candor, it did not occur to his opponents to block his nomination; instead, it went to a vote, and a 52-48 majority—the narrowest margin ever for a nominee—confirmed him. When George W. Bush named Samuel Alito to replace the centrist Sandra Day O’Connor in 2005—a choice certain to shift the balance of the Court dramatically—only 25 of the 44 Democrats backed the filibuster.

Now ask yourself a question about today’s Senate: How many of the 45 Republicans now in the Senate would break with their party and vote to end a filibuster of an Obama Supreme Court appointment? How many would risk a Tea Party primary opponent, or a talk radio onslaught, and step away from a fight to stop Obama from putting a pro-choice, “living Constitution” Justice on the Court for the next generation?

And if that meant leaving the Court with only eight justices—or seven, should a second vacancy develop—the Republican minority would be more than happy to live with that. There’s nothing that requires the Congress to fill all nine positions on the Court. Indeed, the case for leaving a seat empty was made by a prominent academic liberal, after the contested 2000 election. Yale Law professor Bruce Ackerman argued then that “when sitting justices retire or die, the Senate should refuse to confirm any nominations offered up by President Bush” until 2004, when the country could decide the legitimacy of Bush’s tenure. (As it happened, there were no vacancies in his first term, and Bush won a clear, if narrow, victory in 2004.) Given the zeal with which the Republican base argues that Obama is a lawless, Constitution-shredding chief executive, it is an easy step to argue that we should wait until a new chief executive is chosen in 2016.

If this analysis is correct, then what happens in November almost doesn’t matter. Yes, a Republican Senate takeover would give the GOP control of the Judiciary Committee, which means that all federal judicial nominations might die a slow but certain death. But even if the Democrats hold the Senate—even if, by some hard-to-imagine turns of events they kept their 55-seat majority—the likeliest outcome of any Supreme Court nomination is a filibuster and a vacancy or two that will endure until the country chooses a new President.


TOPICS: Constitution/Conservatism; Government; Philosophy; Politics/Elections
KEYWORDS: ginsburg; judiciary; laurencetribe; obama; scotus; supremecourt
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1 posted on 07/24/2014 4:00:51 AM PDT by 2ndDivisionVet
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To: 2ndDivisionVet

The author’s underlying premise here is flawed. The Republican Party would never filibuster a Supreme Court nominee named by Barack Obama ... even if Osama bin Laden was the nominee.


2 posted on 07/24/2014 4:11:52 AM PDT by Alberta's Child ("What in the wide, wide world of sports is goin' on here?")
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To: Alberta's Child

Well there are several Republican parties. I gather you’re talking about the one infested by John Cornyn, Marco Rubio, Mitch McConnell, John McCain, Mitt Romney, John Boehner and that lot, right?


3 posted on 07/24/2014 4:14:53 AM PDT by 2ndDivisionVet (The most dangerous man to any government is the man who is able to think things out for himself.)
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To: 2ndDivisionVet

The author confuses “Republican Party” with “conservatives.” There is a very small conservative contingent in Washington, D.C. This doesn’t change even if the Republican Party controls the White House and both Houses of Congress.


4 posted on 07/24/2014 4:20:44 AM PDT by Alberta's Child ("What in the wide, wide world of sports is goin' on here?")
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To: Alberta's Child

I would hope Republicans would filibuster Larry Tribe! The author actually was hopeful of being nominated at one time.

Talk about divisive! His tone in this article is evenly measured given his deep-seated ideological leanings.

Oldplayer


5 posted on 07/24/2014 4:21:48 AM PDT by oldplayer
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To: Alberta's Child

“The author’s underlying premise here is flawed. The Republican Party would never filibuster a Supreme Court nominee named by Barack Obama ... even if Osama bin Laden was the nominee.”

After some perfunctory objections and weeks of anti-Repub bashing by the media even a Repub majority in the senate would approve whatever psychotic leftist Ob@st@rd nominated.


6 posted on 07/24/2014 4:22:52 AM PDT by Brooklyn Attitude (Things are only going to get worse.)
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To: oldplayer

The fact that Tribe has been a player in the politicization of the Supreme Court in recent decades — and yet offers such a totally flawed analysis of today’s political scene — reinforces my belief that “legal scholars” are among the most marginal, overrated people you’ll meet these days.


7 posted on 07/24/2014 4:25:37 AM PDT by Alberta's Child ("What in the wide, wide world of sports is goin' on here?")
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To: 2ndDivisionVet

It has become the practice for a justice to announce his retirement effective upon the confirmation of his successor. So the “vacancy” is conditional and the Court continues to function with 9 justices as the confirmation process creaks along. I think this is a change in recent decades. Now, if a justice were to die or actually leave the court, I think we would see a much faster process.


8 posted on 07/24/2014 4:32:50 AM PDT by Stingray51
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To: 2ndDivisionVet

In the unlikely event that the GOPe held its ground, for Obama, it would soon no longer matter what the Supreme Court did. He would simply rule by decree disguised by some confusing complex legal obfuscation.


9 posted on 07/24/2014 4:33:17 AM PDT by Truth29
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To: 2ndDivisionVet

Harry Reid would simply extend his filibuster ban to SCOTUS nominees, and Obama would get his LGBT/Muslim/La Raza nominee confirmed easily.


10 posted on 07/24/2014 4:39:08 AM PDT by montag813
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To: 2ndDivisionVet

The question is why doesn’t Ginsberg retire?

She is old, and she is sick (and I think a case could be made that she is no longer up to the job, perhaps her clerks are doing all the real work).

But why hang on? She could have retired when the Democrats were in full control and could have nominated and have confirmed any far left extreme person.

So why didn’t she, and why is she hanging on now?

I don’t have an answer but I think it would prove interesting when (if) the truth is ever known.


11 posted on 07/24/2014 4:51:16 AM PDT by CIB-173RDABN (I do not doubt that our climate changes. I only doubt that anything man does has any effect.)
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To: 2ndDivisionVet

If Harry Reid is still majority leader, what makes the author not even consider the highly probable likelihood that Reid would change the rules of the Senate without hesitation (by outlawing filibusters of Supreme Court nominees) if it suits his party politically?

The only reason he hasn’t done so yet is that there was no vacancy at the time. The Democrats needed to pack the lower courts with political nominees, so that’s the rule that Harry Reid needed changed. And he did. Anyone who thinks he wouldn’t do it again for expediency’s sake is a fool. The man is obviously shameless, and he can expect the same compliance from the media as when he did it the first time.


12 posted on 07/24/2014 4:59:16 AM PDT by winner3000
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13 posted on 07/24/2014 5:29:41 AM PDT by DJ MacWoW (The Fed Gov is not one ring to rule them all)
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To: Alberta's Child

And the Democrats would use empty Supreme Court seats as a bludgeon. “The Republicans won’t do their duty!” and “Vote for us or the Republicans will pack the Court!” will be their battle cries.
And they’ll pull out all stops on the vote fraud front - a decisively Constitutionalist majority on the SCOTUS might be a disaster for them.


14 posted on 07/24/2014 5:34:48 AM PDT by Little Ray (How did I end up in this hand-basket, and why is it getting so hot?)
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To: 2ndDivisionVet; Lurking Libertarian; Perdogg; JDW11235; Clairity; Spacetrucker; Art in Idaho; ...

FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.

15 posted on 07/24/2014 5:40:04 AM PDT by BuckeyeTexan (There are those that break and bend. I'm the other kind. ~Steve Earle)
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To: 2ndDivisionVet

It will make no difference to the court’s make-up if Obama gets to replace that old bat. He’ll simply choose another lib-tard dirt-bag; and he’d be hard pressed to find someone who hates the U.S. Constitution more than does Ruth Bader Ginsberg.

Now, if he had a chance to replace Scalia or Thomas, THAT would be a disaster.


16 posted on 07/24/2014 5:45:14 AM PDT by WayneS (Don't blame me, I voted for Kodos.)
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To: CIB-173RDABN

...no longer up for the job?

When was she EVER up for the job? She respects the constitutions of South Africa and the EU more than she does the one she is sworn to uphold.


17 posted on 07/24/2014 5:49:00 AM PDT by WayneS (Don't blame me, I voted for Kodos.)
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To: Alberta's Child
The author’s underlying premise here is flawed. The Republican Party would never filibuster a Supreme Court nominee named by Barack Obama ... even if Osama bin Laden was the nominee.

Precisely why McConnell has to go!

18 posted on 07/24/2014 6:17:47 AM PDT by The Sons of Liberty (I want 0bama to make history - First to be IMPEACHED and REMOVED!)
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To: Truth29

He’d make a recess appointment. Even with the recent NLRB ruling, the Senate can’t, physically, stay in session forever.


19 posted on 07/24/2014 6:33:29 AM PDT by tanknetter
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To: WayneS

If the recess appointment problem didn’t exist, the solution would be to filibuster the Ginsburg replacement until Scalia or Kennedy left. Then demand reciprocity: the President gets to select a nominee, and the GOP leadership gets to select a nominee. Both get voted on at the same time.

Yes, we’d have to trust that the GOP leadership would choose a Conservative for their selection. But it’s a better option than leaving it to Obama. And it fits within the boundaries of the “advise” part of “advise and consent”


20 posted on 07/24/2014 6:40:55 AM PDT by tanknetter
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