Supreme Court Vacancy Raises The Stakes

The unexpected death of long time Associate Supreme Court Justice Antonin Scalia has shocked the political and legal world.  All who knew Justice Scalia – notwithstanding their differences of opinion on legal and political issues – said he was a good man and good friend.  Liberal icon Ruth Bader Ginsburg was counted among Scalia’s closest friends.  Dave Domina expressed those sentiments towards Scalia very well in a tweet: “Sincere condolences to family of Justice Scalia.  May fond memories replace the grief of loss.”

While Scalia was a good family man and friend, he did leave behind a controversial and complex legacy at the Supreme Court.  Scalia was one of the leaders of the conservative bloc that has tilted the legal and political playing field in favor of the wealthy and the GOP over the last few years.

It was Scalia who was one of the five votes in favor of the stay in the Bush v. Gore case that stopped the recount in Florida and handed the Presidency to George W. Bush.  In his opinion justifying the stay, Scalia made it clear that the five Republican appointees were going to find for Bush when he wrote: “The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. ”

After Roberts and Alito were appointed to the Supreme Court in 2005, Scalia was a loyal ally of the other four GOP appointees who voted to gut the Voting Rights Act and to find that money is speech under the First Amendment in the infamous Citizens United case.   Scalia was also the author of the Supreme Court’s holding in 2008 that overturned decades of settled law and found that the Second Amendment protects an individual’s right to possess a gun for traditionally lawful purposes, such as self-defense within the home.

Within hours of Scalia’s death, Senate Republican leader Mitch McConnell laid down the gauntlet and said that the vacancy should not be filled until a new President is elected.  Shortly thereafter, President Obama took the podium and announced that he would fulfill his Constitutional duties as President and would nominate a successor “in due time.”

McConnell’s apparent refusal to even consider a Supreme Court nominee is unprecedented and in direct contradiction of what he stood for during the Bush Administration.  On May 19, 2005, the Kentucky Senator said: “The Constitution of the United States is at stake.  Article II, Section 2 clearly provides that the President, and the President alone, nominates judges.  The Senate is empowered to give advice and consent.  But my Democratic colleagues want to change the rules.  They want to reinterpret the Constitution to require a supermajority for confirmation.  In effect, they would take away the power to nominate from the President and grant it to a minority of 41 Senators… The Republican conference intends to restore the principle that, regardless of party, any President’s judicial nominees, after full debate, deserve a simple up-or-down vote.”

The Senate Republican leader’s rejection of the the Senate’s Constitutional duties isn’t only hypocritical – it also runs contrary to modern history.  There is ample historical precedent to support the notion that the Senate should consider and even confirm a Supreme Court nomination during an election year.  In 1956, a Democratic majority in the U.S. Senate confirmed Dwight Eisenhower’s nomination of William Brennan.  Both Lewis Powell and William Rehnquist were confirmed by a Democratic led Senate in the 1972 election cycle.  In 1988, a Democratic controlled Senate confirmed Reagan’s choice of Anthony Kennedy with the support of McConnell.

The only exception to this precedent in the modern era was in 1968 when a Republican and Dixiecrat filibuster blocked LBJ’s nomination of Abe Fortas as Chief Justice.  The obstruction worked out for the conservatives because Nixon won the election and a Democratic led U.S. Senate confirmed Warren Burger as Chief Justice in 1969.

Two other modern precedents also provide more evidence that McConnell is engaging in raw partisanship in refusing to even consider a Supreme Court nominee.  In 1991, despite the controversy surrounding Anita Hill’s allegations of sexual harassment, a Democratic majority Senate confirmed the nomination of Clarence Thomas by a 52-48 vote.  In 2005, Samuel Alito’s nomination was confirmed by a 58-42 margin.  In both cases, these Republican nominees were granted an up or down vote.  If the Democrats had filibustered, Thomas and Alito wouldn’t have been confirmed.

Mitch McConnell wasn’t the only Republican Senator who is currently serving that guaranteed an up or down vote to all judicial nominees, regardless of the party affiliation of the President making the nomination.  Anybody with a simple google search can find numerous quotes from GOP Senators similar in nature to McConnell’s statement of May 19, 2005.

It is obvious that the Republicans have a double standard when it comes to judicial nominees.  Republican nominees get an up or down vote but the GOP seems to find “exceptions” with no historical precedent to deny an up or down vote to a qualified Democratic nominee.  As Nobel Prize winning economist Paul Krugman said in 2013: “The lesson here is never to take right-wing huffiness about the process of politics and political debate seriously. These guys don’t actually believe in any rules at all; whatever rule they may lay down in one case, they’ll break in an instant if they think they see an advantage.”

This unexpected opening certainly raises the stakes immeasurably in this election cycle. Not only will control of the White House and the U.S. Senate be up for grabs, but control of the Supreme Court will be on the ballot. Since 2005, a five man “conservative” majority has tossed aside long standing and venerable precedents in an attempt to increase the power and influence of the wealthy and the Republican Party. It has been the first activist “conservative” majority since five justices on the Supreme Court invalidated most of FDR’s New Deal between 1933 and 1936.

A Republican victory in the 2016 elections would give them control of the Supreme Court for a generation or more. We could see the return of the jurisprudence of the late 1800s and early 1900s that threw out child labor laws, minimum wage laws and maximum hour laws. A radical right wing majority would weaken the power of the federal government to protect the middle class and the poor.

I am growing increasingly confident that the Democratic nominee will win the Presidential election this year. Both Hillary Clinton and Bernie Sanders are in Sanders’ words: “On our worst days … we are 100 times better than any Republican candidate.” Nevertheless, we can take nothing for granted. The super wealthy and the large corporations will spend whatever it takes to regain power and to increase their grip on the economy. We have no choice but to leave it all on the field this year. Now let’s get it done!