For conservatives still adjusting to the shock of Supreme Court Justice Antonin Scalia’s recent death, an ugly reality just got uglier: there is now the prospect of a Democratic president nominating four, instead of three, Supreme Court justices over the course of the next five years.
Scalia’s untimely departure is an immediate conundrum for which the primary conservative strategy would appear to be “delay, delay, delay,” as candidate Donald Trump argued for during the South Carolina Republican presidential debate recently.
The good news is that Barack Obama would likely only get one shot at a nomination during his remaining time in office. The Republican-controlled Senate can stall the nominee confirmation process indefinitely, but there’s a risk of Republicans losing control of the Senate in the fall elections. And the last thing Senators whose seats may be up for grabs want is the politicization of delaying nominee confirmation hearings.
The specter of the failed nomination of Robert Bork by President Reagan in 1987 (presided over by then-Senator Joe Biden) looms large over the near future, as Obama has 10 and a half months to advance and attempt to wrangle a candidate through hearings — if he actually chooses to nominate a candidate. Will conservatives attempt to use the same obstructionist playbook on his pick that Senate Democrats used on Bork?
This may depend on who a possible nominee might be, despite Senate Majority Leader Mitch McConnell’s and other Republicans’ insistence that Obama should refrain from choosing a replacement for Scalia during his last year in office. It’s been 28 years since the last time a second-term lame-duck president had his Supreme Court nominee confirmed in his final year (Marco Rubio and others have stated the timeframe as more than 80 years, but this is incorrect).
The real issue is that, despite all vows by both parties to the contrary, the nomination process, particularly at the Supreme Court level, has gotten more and more political over the past decades, with presidential candidates now openly speaking of a “litmus test” on positions ranging from abortion to health care before potential nominees are considered.
The problem is that tactic hasn’t always worked out too well in the past, as appointees David Souter and John Paul Stevens during the administrations of George H.W. Bush and Gerald Ford turned out to take increasingly liberal positions in their decisions once they were comfortably ensconced in their Supreme Court chambers.
Scalia, a towering figure not just to conservatives but to the entire American legal profession, was known for stoking controversy by sticking to his guns on many positions by way of what is now referred to as “originalism” — a legal philosophy of defending the original meaning and intention of the Constitution as it was written.
The essence of originalism is adhering to the Constitution’s text without drifting into interpretation or imposing one’s personal convictions. So zealously did Scalia believe in and espouse this ideology (despite veering from it on a few instances) that legal scholars and students now treat this idea with profound respect and admiration.
Some even say this idea preserves and perpetuates the value of the Constitution; even liberally-leaning law students and professors have taken it to heart as a valid, important doctrine. In this way, Scalia’s legacy on the court is colossal.
Scalia’s trouble was that in so passionately defending his beliefs, he made more foes than supporters of his positions (although by all accounts he was affable and personally well-liked). And so while he was respected, his pugnaciousness was not necessarily appreciated in Washington.
Still, Scalia was one of the key keepers of the conservative flame on the court for the last 30 years, insisting that the Constitution makes no mention of abortion or gay marriage, and therefore, to proactively legislate from the bench on these issues was wrong. He stood firmly against affirmative action. Scalia was a key dissenter on the Supreme Court’s Obamacare judgment (which Chief Justice Roberts shamefully waffled on, allowing it to be enacted).
In fact, Scalia was known more as a dissenter than the writer of majority opinions, due to his iconoclasm, rather than consensus building, during his tenure. At the same time, he cast a crucial vote on key 5-4 decisions such as the Obergefell vs. Hodges case which legalized gay marriage and the overturning of the Voting Rights Act of 1965 which allowed Southern states to change their election laws without federal approval.
After Scalia, the court becomes — for the time being — tied 4-4 ideologically, which, in the case of split decisions, preserves the judgments of lower courts, thus negating any power of the Court to overrule in key upcoming cases on abortion, immigration and labor rights in the coming months.
If Obama does succeed in having a new Justice confirmed before the end of his term, the Democrats have a good shot at upending the ideological balance of the Court, at least for the time being.
But in the long term, the prospects for them grow more attractive if they win the 2016 presidency. That’s because Justices Stephen Breyer, Anthony Kennedy and Ruth Bader Ginsburg are thought to be at risk of retiring soon, creating additional vacancies in the court that the next president may likely fill.
This outlook is both uncomfortable and disturbing for conservatives, as the short-term advantage that the Democrats could have may stretch out to be a long-term one, potentially lasting for decades instead of years, since Supreme Court appointments are for a lifetime.
This makes the 2016 presidential election even more important, especially if Obama succeeds in getting a nominee confirmed before the end of his term. With each additional Democrat appointment, hopes for conservative-leaning judgments fade, and the court will appear to be stacked more and more in favor of liberal positions. As many conservative pundits have stated, this could have profound ramifications on gun ownership, abortion, gay rights and immigration.
On gun laws alone, the prospect looms large that interpretations could go against Scalia’s argument of the Second Amendment as an individual right (as other sections in the Bill of Rights have been judged to be), rather than a collective right.
This means that “the right to bear arms” would be seen as valid only in cases of militias, rather than individual gun ownership. Individuals’ gun rights as we know them could change — or even be outlawed in their entirety. This and other alterations in the Court’s views could mean changes to fundamental freedoms that many Americans take for granted.
Another area where the court could impose limits in the short term is campaign financing. The validity of the Citizens United decision that allows wealthy donors to fund conservative candidates through Super-PACs could be impacted. If candidate financing is indeed overhauled, the political landscape might witness a sea change that would roll back progress conservatives have made at local levels. Presidential elections in the future could look fundamentally different.
These and other potential decisions by the nation’s highest court should give conservatives long pause before they think about throwing in the towel on the 2016 elections at any phase. It’s worth considering that some polls show only Marco Rubio (not Donald Trump) having a decisive advantage over either Hillary Clinton or Bernie Sanders as the Democratic presidential nominee in November.
One of the only saving graces may be that it’s a long-held tradition of the Supreme Court (and other courts) not to plainly revisit significant decisions in the short term, regardless of who the sitting Justices may be at the time. This tradition may ultimately be the only comfort for Republicans in a worst-case scenario come November.