Apparently we’ll spend the rest of the year with a 4-4 split on the Supreme Court, with the current vacancy left unfilled after the death of Justice Antonin Scalia. So here’s a scenario. Hillary Clinton beats Donald Trump in the election. Democrats take back the Senate. And then Clinton fills the vacancy by nominating President Obama.
Of all the facets of that scenario, the only one that’s completely unlikely is the last, and it’s not unthinkable. Obama is an attorney who appointed Clinton as secretary of state, so she kind of owes him. When asked earlier this year, she called his being a Supreme Court justice “a great idea.” Democrats would love it if she stuck her thumb in Republicans’ eyes that way. And Obama wouldn’t be the first to move from the White House to the Court. President William Howard Taft has already done it.
The rest is more likely but hardly certain. The latest average of polls by Real Clear Politics has Clinton beating Trump by nine points, and that’s before a potentially nasty fight at the Republican National Convention. In Senate races this year, 24 incumbent Republicans are up for re-election while Democrats are defending only 10 seats, so Democrats have an advantage on those numbers alone.
If Clinton wins and the Democrats retake the Senate, Republican senators might have to make some difficult decisions. They’ve been saying the voters should help pick the next justice through their choices in the election, but what would happen if Republicans are voted completely out of power? Would they give Obama’s nominee, Merrick Garland, or another nominee a second look while they still control the Senate between November and January, rather than take their chances with a Clinton nominee?
Arkansas’ two senators are taking different approaches. Sen. John Boozman says the next president should nominate the next justice, period. In a statement, he said, “Our country is very split and we are in the midst of a highly contested presidential election. My colleagues and I are committed to giving the American people a voice in the direction the court will take for generations to come.” His spokesman, Patrick Creamer, said Boozman’s position would not change even if Democrats win everything in November.
Sen. Tom Cotton, however, left himself some wiggle room. In his statement, he said, “In a few short months, we will have a new president and new senators who can consider the next justice with the full faith of the people. … The nomination should not be considered by the Senate at this time.” His spokesperson, Caroline Rabbitt, pointed to the “at this time” part and did not rule out Cotton considering Obama’s nominee after the November election.
At the very least, the Supreme Court sometimes will look like Congress in these coming months: divided and paralyzed. A 4-4 decision means the lower court’s ruling in that particular case will stand. Let’s hope those positions get filled if they come open.
This kind of standoff was bound to happen, I guess. The country, like the Supreme Court, is so divided that nation-changing court decisions will come down to one Supreme Court justice. In some ways, choosing that justice is more important than choosing the next president.
One other issue at play is the Founding Fathers’ really bad idea to give Supreme Court justices a lifetime appointment – to insulate them from politics, ha ha. Because of that lifetime appointment, presidents tend to pick someone as young as they can get away with. To Obama’s credit, Garland is 63, unlike the early-50-something-year-olds who have been nominated lately, or Justice Clarence Thomas, who was in his early 40s. Still, Garland could rule from the bench for at least two decades.
One good thing about this controversy is that it has reminded voters of the importance of this presidential duty. The next president could nominate at least four justices. In addition to Scalia’s replacement, Justice Ruth Bader Ginsburg is 83, Justice Anthony Kennedy is 79, and Justice Stephen Breyer is 77.
What happens if, after November, one party still controls the White House and the other the Senate? Will the two branches ever be able to agree on a pick before more vacancies occur?
Let’s hope so. Somebody has to do this job, and no one lives forever.