Politics August 16, 2016
As if deciding judicial cases wasn’t difficult enough, the highest court in the United States had to finish its 2016 session short one man. And recruiting a new team member is proving to be a difficult enterprise.
WHAT HAPPENED: Supreme Court Justice Antonin Scalia passed away this February. The powerful man was a staunch conservative who stood by his originalist interpretation of the Constitution instead of cultural trends and wanted to make sure that the Supreme Court uses its power responsibly. (The perfect example of this is Obergefell v. Hodges. He disagreed with the gay marriage decision not because of his views on the issue itself, but because he thought the judges had too much power in deciding such a big issue for everyone.)
WHAT IS HAPPENING NOW: Now the Supreme Court is down to eight judges, which, as you would know if you and three friends voted on whether to see “Finding Dory” or “Independence Day” in theaters, is an issue. The court is fairly balanced ideologically, with many of the judges are centralists, with Clarence Thomas as the voice of conservatism and the far right, and Ruth Bader Ginsburg on the side of the far left (although compromise and contrasting opinions to the official party line is far more prevalent in the Supreme Court than in Congress with both parties). This opens the possibility of a few 4-4 votes. When there is a tie, the decision of the lower court is upheld.
At the end of their June session, the court did indeed fail to reach a majority on a few cases, most notable on President Obama’s immigration plan. And in general, the court was cautious in their rulings in the absence of a ninth team member. They sent more cases back to the lower courts than they usually do, saying effectively, “Try again. We may not be ready to deal with this issue right now.” This includes a controversial case about contraceptives, with many commentators concluding that the Court was afraid to decide because of the loss of Scalia’s conservative voice on reproductive rights.
But they did make some important, watershed decisions, including a decision on Texas abortion clinics that Scalia may have disagreed with the outcome. Some conservative men and women say that this was a case of Supreme Court dominion over states’ rights to set their own regulations. In the case Whole Woman’s Health v. Hellerstedt, some Texans argued clinics that provided abortions should have to hold themselves to the same regulations that hospitals do. Pro-choice supporters said the plan would restricts women’s reproductive rights as well as cost the state a great deal. The court agreed, and the Texas restrictions on abortion clinics were struck down.
On the whole, the Supreme Court was cautious throughout their “man-down” 2016 session. Lisa Blatt, an appellate lawyer, said in a USA Today article that “With the exception of a few cases, the court decided very little and in some instances … created more questions than they answered.”
When a vacancy opens in the Supreme Court, the President nominates a judge to fill the position (This graphic from The Washington Post is helpful). The process involves the President sending the nominee to the Senate, who gives the appointee a “hearing” (like a job interview or press conference). They’re typically conducted by Senators who themselves have a law degree and a legal background to determine competency. This is very different from the voting process, which is open to every single Senator. If they are approved by a majority of 51 Senators, the new justice will be sworn in for the next judicial session..
SOLUTION A: Barack Obama sought to fill the opening. He has appointed Merrick Garland as a judge, claiming that he’s a solid middle-of-the-road choice. Garland is well-qualified for the position, with more judicial experience than any previous nominee. But Republicans doubt he’s a true moderate, citing his support of unions over businesses, his willingness to challenge gun control rulings and consistent favorable rulings for the EPA.
One study of Garland’s previous rulings by four political scientists concluded that Garland’s rulings would be closer to left-leaning justices Ruth Bader Ginsburg and Sonia Sotomayor, according to The New York Times.
SOLUTION B: But Republicans want to block Garland’s nomination, claiming that it’s too close to the election for Obama to make a life-long Supreme Court appointment (actually, 19 presidents have nominated a justice at the end of their term). They say the next president should choose, instead. They’re refusing to give Garland a hearing, and, consequently, a Senate-wide vote.
Here’s Speaker of the House Paul Ryan’s (R-WI) official statement about the nomination:
“This has never been about who the nominee is. It is about a basic principle. Under our Constitution, the president has every right to make this nomination, and the Senate has every right not to confirm a nominee. I fully support Leader McConnell and Chairman Grassley’s decision not to move forward with the confirmation process. We should let the American people decide the direction of the court.”
According to Ryan, the people’s choice of a new president should come before the choice of a new Supreme Court Justice.
Refusing appointments isn’t unusual (although refusing to grant a hearing is), and it’s perfectly constitutional, as both Democrats and Republicans attest.
And just like when you shoot down your friend’s offer to get pizza, the next president has to answer the question, “Fine, then. What do you want?”
WHAT ABOUT NOVEMBER: Presidential candidates Donald Trump and Hillary Clinton are making their Supreme Court wish lists. Trump published a list of 11 possible appointees in May. The list appeared uncharacteristically reasonable, including many respected conservative justices with connections to former president George W. Bush and Justice Scalia. These include Dianne S. Sykes, a judge on the Court of Appeals for the Seventh Circuit, and Steven M. Colloton of the Eighth Circuit.
However, a wishlist is not an official nomination. And there’s no guarantee that Trump would follow through with these choices, since “Like every clause of every sentence uttered in every breath Donald Trump takes, this is all subject to change,” as conservative blogger and Trump opponent Erick Erickson said via The Resurgent.
Clinton’s wishlist is more of a character sketch. She’d like her nominee to be like Justice Sonia Sotomayor, whose gender, minority status and views on issues like abortion rights give her a much-needed voice in the Supreme Court.
Moral of the story: Clinton’s nominee would lean the Supreme Court further to the left than Trump’s would.
IN THE MEANTIME: There’s little to do now but watch, wait and wonder.
The Supreme Court won’t be in session until October, and if the Senate continues to ignore Garland, there won’t be a new president to make a second nomination until January.
Will the Senate vote on Garland? Maybe they should play “rock, paper, scissors” to decide.
