It’s looking very likely that the next President of the United States will be Hillary Clinton. Less certain is whether Republicans in the U.S. Senate will lose their majority on Nov. 8 and, if so, by what margin.
Currently, the U.S. Supreme Court is operating with eight justices due to the death of Justice John Scalia early this year. Since then, in cases that are “decided” in a 4-4 vote, a ruling by a lower court (almost always the Court of Appeals) prevails, but such a decision is not binding precedent.
The reason Scalia’s vacancy has not been filled is because Senate Majority Leader Mitch McConnell (R-KY) announced after Scalia’s death (Feb. 13) that the choice of a successor should be left to the next president, not Barack Obama. Little more than a month later, President Obama fulfilled his own constitutional responsibility by nominating federal Circuit Court Judge Merrick Garland to fill the vacancy left by Scalia.
Senator Charles Grassley (R-Iowa), chairman of the Senate Judiciary Committee, has not scheduled any hearings on the Garland nomination. Interestingly, before 1925 and the nomination of Harlan Stone by then-President Calvin Coolidge, no hearings had ever been held by the U.S. Senate on a U.S. Supreme Court nominee. Asking questions of a nominee and how s/he might view future cases was thought to be unseemly. However, following the 1954 Supreme Court decision in Brown vs. Board of Education, southern senators demanded a confirmation hearing on President Dwight D. Eisenhower’s nomination of John Marshall Harlan, II, and a confirmation hearing has been held on every Supreme Court nominee since.
So, there are any number of scenarios that could play out over the next few months depending on what happens in the Nov. 8 general election. Here they are:
— 1) Donald Trump wins the presidency, and Republicans retain control of the Senate. This one is easy. Nothing happens until Trump assumes office on January 20, 2017, makes an appointment to fill the vacancy, and then wait to see if the GOP-controlled Senate confirms the nominee (likely).
— 2) Trump wins the presidency, but Democrats gain majority in the Senate. Republicans retain their majority until Jan. 3, which means that, in a two week window between that date and Jan. 20 (when Trump takes the oath of office), Democrats could employ the “nuclear option” to destroy the 60-vote rule to stop filibusters. They would then have to gain only a simple majority (51 votes) to confirm Garland. Even if the Senate is divided, 50-50, Vice-President Joe Biden would still be the Senate’s presiding officer (until Jan. 20) and could break a tie in favor of the Democrats.
— 3) Hillary Clinton wins the presidency, but Republicans retain control of the Senate. McConnell, Grassley & Co. could then decide to move forward during the lame duck session on the Garland nomination before the new Senate takes office on January 3, 2017 conceding that Garland is the best they are going to get and thus denying Clinton an early Supreme Court appointment. Garland has already broken the six-month record formerly held by Louis Brandeis during the administration of Woodrow Wilson for length of time between being nominated and receiving a confirmation vote (Brandeis was then confirmed). Once a nomination is reported out of the Senate Judiciary Committee, only a simple majority vote is required to confirm or reject a nominee. Should opponents of a nominee launch a filibuster, a “super majority” of 60 votes is currently required to end debate (cloture) and force a final vote on confirmation. No nominee for the high bench has ever been successfully filibustered, thus denying a vote on confirmation and forcing the president to withdraw it. However, none other than U.S. Senator Robert Griffin of Michigan led a filibuster against elevating Associate Justice Abe Fortas to replace Chief Justice Earl Warren in 1968, causing President Lyndon B. Johnson to withdraw Fortas’s nomination (Fortas later resigned from the court). That paved the way for a new president, Richard Nixon, to appoint Warren Burger as the court’s chief justice when Nixon assumed the presidency in 1969. Of course, President Obama could exact some revenge on the Senate GOP by withdrawing Garland’s nomination, thus giving Clinton a chance to reshape the Supreme Court ideologically (although she still might fail if the Senate remains under GOP control). Withdrawal of a Supreme Court nominee is not without precedent. Most recently, President George W. Bush withdrew the nomination of Harriet Myers in 2005 (a seat later assumed by Justice Samuel Alito). In 1987, President Ronald Reagan withdrew his nomination of Justice Douglas “Up in Smoke” Ginsburg (a seat later filled by Justice Anthony Kennedy).
— 4) Clinton wins Presidency, and Democrats seize control of the U.S. Senate. Somewhat the same scenario as #2 above, but some Senate Republicans (John McCain, most prominently) have indicated they would form a “wall” to unanimously oppose cutting off a filibuster on bringing a nomination (Garland’s or anybody else’s) to a vote, in 2017 or beyond. That would likely prompt a fight over Senate rules, with majority Democrats employing the “nuclear option” to allow a simple majority vote to invoke cloture on judicial nominations. For what it’s worth, rejection of a nominee by the Senate is rare. It last occurred in 1987 when Reagan’s nomination of Robert Bork was not confirmed, on a 42-54 vote. Previously, during the Nixon administration, Clement Haynsworth was rejected, 45-55, and G. Harrold Carswell was turned away, 45-51.
A few words more: if Republicans continue to control the U.S. Senate after Nov. 8, could they conceivably keep the Scalia vacancy unfilled until the 2020 election? That scenario would be next to impossible politically.
True, there is nothing in the U.S. Constitution that mandates nine justices serve on the U.S. Supreme Court. In 1789, the size of the Court was set by Congress at six, in 1807 it was expanded to seven, to nine in 1837 and to 10 in 1863. In 1866, Congress changed its mind and decided the court would be reduced by attrition down to seven, but by 1869 it was back up to nine again, where it has remained ever since. In 1937, President Franklin D. Roosevelt proposed expanding the size of the court by one justice for every justice who was over 70-and-a-half years old but who refused to retire, up to no more than 15 justices in size. This was referred to as FDR’s “court-packing pan,” but it eventually failed to be approved by a Congress where Roosevelt’s own party, the Democrats, controlled both chambers.
Today, three other vacancies besides Scalia’s are likely to occur because of either death or retirement during the first term of the next presidential administration (2017-2020). Justice Ruth Bader Ginsburg is 83, Justice Anthony Kennedy is 80, and Justice Stephen Breyer is 78. The remaining justices — Clarence Thomas, Alito, Sonia Sotomayor, and Chief Justice John Roberts are all in their Sixties, while Justice Elena Kagan is a comparatively youthful 56.
But just as the NCAA clamped down on what used to be called the four-corner offense in college basketball by installing the shot clock, the American public wouldn’t tolerate a senatorial confirmation slow-down for one Supreme Court appointment for the duration of a presidential term, let alone up to four.
One final thought: Judicial historian Bob LaBrant of Lansing’s Sterling Corporation posits that, if the Republicans lose control of the Senate next month, Republican Majority Leader McConnell might seek to save face by having the Senate adjourn “sine die” (quit and go home) earlier than usual, thus allowing Obama to make what is called a “recess” appointment.
Article II, Section 2, of the U.S. Constitution provides that “The president shall have the Power to fill up all vacancies that may happen during the Recess of the Senate, by granting commissions which expire at the end of their next session.”
The practical effect of this clause is that Obama could give Garland a recess appointment. Garland could then join the court immediately without the Senate’s advice and consent, although he supposedly could serve only until the end of the 2017-18 session. However, Democrats who would be in control of the Senate after Jan. 3, 2017, almost certainly would then quickly confirm Garland’s nomination without the Republicans taking responsibility for it.
President Eisenhower in fact made three recess appointments of Supreme Court justices — Earl Warren as chief justice in 1953; William Brennan in 1956; and Potter Stewart in 1958.
Recess appointments since that time have been highly controversial; during George W. Bush’s presidency, the Democratic leadership in the 110th Congress blocked recess appointments by use of what are called “pro forma sessions.” Senator McConnell has followed a similar practice with President Obama.
This time McConnell may not.