Elections matter, affecting even the appointment of judges, as the Merrick Garland nomination demonstrates.
The Constitution provides that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court.” Of course, we elect our presidents and our senators. And the results are such that at any given time we have a president and a Senate of the same party or we have a president of one party and a Senate of the other party. That is, we have either unified or divided government (ignoring the House, which has no role here). And whether we have one or the other, vacancies on the Court will always occur, the filling of which is governed by the appointments clause.
The relevant elections for the Garland nomination were those in 2012 and 2014. In 2012, President Barack Obama won a second term, and the Democrats kept control of the Senate. No vacancies occurred during the first half of Obama’s second term. But it’s fair to say that had there been a vacancy, the Senate Democratic majority would have swiftly confirmed the president’s nominee, just as it did his first two, Sonia Sotomayor in 2009 and Elena Kagan in 2010.
In 2014, the Republicans captured the Senate, creating a divided government. So when Justice Antonin Scalia died in February, the terms of the appointments clause left nominating his successor to the president, a Democrat, and the decision to confirm the nomination (or not) to the Republican Senate.
In The Oxford Companion to the Supreme Court of the United States, Rayman L. Solomon observes that during periods of divided government, the Senate has been occasionally able “to muster the opposition to block a vulnerable” nominee. Rarely, however, has there been a divided government in which Republicans controlled the Senate and during which a vacancy occurred that a Democratic president undertook to fill. Indeed, you have to go all the way back to 1895 to find a similar situation. The Democratic president Grover Cleveland nominated Rufus Peckham, and the Republican Senate confirmed him six days later.
Much of relevance has happened since the appointment of Justice Peckham, not least the rise of modern judicial review (to which Peckham contributed) and its looser approach to constitutional adjudication. In 1964, the Republican candidate for president, Barry Goldwater, criticized the Warren Court, arguably the most activist ever. Thus did the Court’s exercise of judicial power become a major-party issue for the first time in a presidential campaign.
Since then judicial activism has remained an issue for Republicans while Democrats have advocated versions of the “living constitution,” which enabled decisions such as Roe v. Wade (in 1973, creating a woman’s constitutional right to an abortion) and Obergefell v. Hodges (just this past year, declaring a constitutional right to same-sex marriage).
Over the years the parties have become more polarized in their views, such that conservative Democrats and liberal Republicans are today uncommon sightings. Democrats promise to appoint judicial liberals and Republicans judicial conservatives, and so they have, though the justices chosen by Democratic presidents have proved more reliably liberal than some of those selected by Republican presidents have proved reliably conservative (see Justice Anthony Kennedy).
Even so, in their forthcoming analysis of partisan polarization and the Supreme Court, law professors Neal Devins and Lawrence Baum observe that since 2010, when Elena Kagan replaced liberal John Paul Stevens, a Republican appointee, all the Republican appointees on the Court have been to the right of all the Democratic appointees. Devins and Baum also make the point from the opposite direction: “Every Justice appointed by a Democratic president stands to the left of every Justice appointed by a Republican.”
This pattern “is unique in the Court’s history,” they write. “Before 2010, the Court never had ideological blocs that coincided with party lines.” And because “a Court with five Democratic justices will reach sets of decisions that are quite different from those a court with five Republican justices would reach . . . presidential elections matter more for the Court than ever before.”
But not presidential elections only. Senate elections, staggered every two years, likewise matter more for the Court than ever before—as the Garland nomination is proving. For just as the president has the authority to nominate a justice, the Senate has the authority to give or withhold its consent to the nomination. And without that consent—which Republican senators say they will deny the Garland nomination—there can be no appointment.
The Garland nomination is a novelty of sorts. We know what can happen when a Democratic Senate challenges a Republican president’s nominee. The confirmation process can be vicious (see the Clarence Thomas nomination) and a nominee can be rejected (see the Robert Bork nomination). But in the modern era, until now, we have not had a Republican Senate oppose a Democratic nominee, and in blocking Garland, the Republicans have dispensed with the usual confirmation process (in which hearings are held and votes cast). Garland has met privately with Republican senators. But the sessions, while cordial, have yet to change Republican minds on the critical question of whether to hold hearings. “Democrats Hit Brick Wall in Supreme Court Fight” was the headline atop a recent Washington Post story reporting on Garland’s meetings with Republican senators. Right now, that promises to serve as the epitaph of the Garland nomination.
Soon after Scalia died, Senate Republicans made their case against anyone the president might select, and they have maintained it since Garland was formally nominated. Elections are at the heart of their argument. Republicans say there will be a “political firestorm” if the confirmation process goes forward in an election year, and they want to avoid that, for it will be bad for the nominee, the Senate, and the Court. At the same time, however, Republicans want voters to know that they have an opportunity to decide the kind of justices they believe the Court needs, since we will be electing a new president, and the Senate may be up for grabs.
The Republicans’ argument seems confined to the last year of a term-limited presidency (meaning one with two terms). Indeed, the logic of the argument is that had a vacancy opened in 2015, the first year of the current divided government but not an election year, the Republican majority would have treated the person nominated to fill it differently from how it is treating Garland now. Maybe. What’s clear is that, whatever happens to the Garland nomination in the weeks and months ahead, 2016 promises to remain an intensely political year for the process of selecting justices for the Supreme Court.
Terry Eastland is an executive editor at The Weekly Standard.
