The Court and the Election

Some folks have asked why the Hermit Philosopher hasn’t blogged recently and, in particular, why he hasn’t weighed in on the presidential campaigns and the Supreme Court vacancy. Okay, here goes.

The HP has long felt that the most important issue this election year is who will fill vacancies on the Supreme Court. Justice Ginsberg is now 83, Kennedy will soon turn 80, and Breyer is 77. Thus even before Antonin Scalia died it was likely that the next President would appoint two or three new members of the Court. Presidents come and go at least every eight years, but Justices seem to last forever. The HP is terrified by the thought of Donald Trump, Ted Cruz, or someone of their ilk being able to appoint a third or more of the Court and perhaps hundreds of other federal judges during their four- or eight-year tenure. The shock waves could be felt for generations.

As we all know, battle lines have already been drawn by the Republican leadership over Scalia’s replacement. They threaten to withhold action on any appointment by President Obama, hoping that the next White House occupant will be one of their own. In response to that doctrinaire position, here are some facts I’ve gleaned from various sources and some thoughts of my own.

Eight justices have been nominated and six confirmed in a presidential election year since 1900. And for more than two centuries, it has always been standard practice for the Senate to act upon a President’s Supreme Court nominees whether in a presidential election year or not. Of the six justices confirmed since 1900, three have been Republicans, the most recent being Anthony Kennedy. He was appointed by President Reagan and confirmed by a Democratic-controlled Congress in February of 1988, an election year.

Since 1875, every nominee has received a hearing or a vote, and the process has never taken longer than 125 days. In the last four decades, the average time from nomination to confirmation was 67 days. The longest time before confirmation in the past three decades was 99 days, for Justice Thomas. The last four appointees, spanning two Administrations, were confirmed in an average of 75 days. When Scalia died there were 342 days left in Obama’s term, thus it is clear that senators will have plenty of time to consider and act on a nomination, if they take their oaths of office seriously and act in good faith.

It will be harmful and create unsustainable uncertainty if Congress fails to act on an Obama nominee. (For example, at the very moment I'm writing this an eight-member Supreme Court is hearing argument on a major abortion case.) And if a Democrat is elected the next President and the Senate remains in Republican hands, the Court could go more than eight years with a vacancy. This would be unprecedented, totally irresponsible, and harmful to our judicial system because the panel would likely be split 4-4 on many major questions.

Split decisions by the Court have no value as precedent; that is to say, they don’t establish uniform nationwide rules, and judges can't rely on them to decide future cases. If multiple appellate courts had ruled differently on an issue before it came to the Supreme Court, a 4-4 ruling would leave different rules for different judicial circuits. The result is uncertainty … for the law, for individual liberties, and for our economy.

Bottom line: the HP doesn’t care who gets either party’s nomination. It doesn’t make any difference to him at all. Whoever has a (D) behind her/his name will get the HP’s vote. 

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For more info, see the timeline in this article.