Will We Get a Ninth Supreme Court Justice?

Not if Clinton Wins the President and the GOP Maintains Control of the Senate

Mitch McConnell: Slow Is Overstating It
Mitch McConnell: Slow Is Overstating It

Dan’s march through the Senate, and his fine post today on Wisconsin, might even be more significant than says. He writes:

A President Trump with a Republican Senate could do a lot to carry through on his pledge to dismantle EPA’s powers, whereas a President Clinton would receive valuable support from a Democratic Senate. If Clinton wins, Democratic control of the Senate would increase her leverage in dealing with the House, and would allow her a much freer hand with agency and judicial appointments.

But this understates the matter, in my view. Let us suppose that Clinton wins but the Republicans hold the Senate. If that happens, I believe that

  1. we will not see a replacement for Justice Scalia for her entire term;
  2. virtually no new circuit judges will be confirmed; and
  3. large chunks of the executive branch appointments will go unfilled.

People usually say I am being, well, me, when I say this. And in an existential sense I am! But there is a logic here.

For the last several years, and at least since 2010, Republicans have been much more afraid of primary challenges than general election opponents. And given the state of the Republican base — of which, mind you, fully 72% believe that President Obama was not born in the United States — anyone voting to confirm a Clinton appointment for any judgeship will immediately put a huge target on this back.

“But surely they could not simply refuse to fill a Supreme Court seat.” Why not? The only reason why this is true is because of norms, not rules. It is already clear that Republicans have received no adverse political consequences for their unprecedented refusal to even consider the Merrick Garland nomination. The entire nature of the modern Republican Party lies in the breaking of norms, a philosophy I have described elsewhere as “Gingrichism.”

That is particularly true because under current Senate rules, a Supreme Court nomination still requires 60 votes for cloture. It will be easy for a few Republicans to vote cloture, have it not reach 60, and for Mitch McConnell to declare very sadly that the appointment of, say, Richard Posner is simply too left-wing for the American public.

This pattern will play out with even greater fierceness in the executive branch. Perhaps — perhaps — Republicans will feel enough pressure to confirm Cabinet posts. There are hundreds of sub-Cabinet posts that are critical to the functioning of the federal government that will not get any press coverage at all. So there will no incentive for the GOP to confirm them.

In fact, the incentive will be not to confirm them precisely in order to cripple a Clinton Administration. If the government cannot function, this dovetails nicely with the Conservative Movement’s ideology that government is necessarily ineffective. As conservative satirist P.J. O’Rourke has acidly and correctly remarked: “the Republicans are the party that says that government never works and then gets elected and proves it.”

Don’t believe me? Look up Adam Szubin. He is currently the Acting Undersecretary of the Treasury for Terrorism and Financial Intelligence. Note the “Acting.” One might think that confirming such a position would be pretty important. One would be wrong: President Obama nominated Szubin to the position in April 2015. He has yet to receive a hearing.

So if were, say, Gina McCarthy, or Sally Jewell, or Loretta Lynch, and on November 9th I wake to find a President Clinton and a GOP Senate, I’d settle in for a nice long stay.

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Reader Comments

2 Replies to “Will We Get a Ninth Supreme Court Justice?”

  1. Looking more like a Clinton administration and a 49-51 Senate split. Given the political animosity, the age of some of the SCOTUS justices, the current trend of 4-4 or 5-3 decisions is likely to soon be 4-3.In that case we may not see new justices until 2021. The animosity is only going to get worse and with a Republican surge in the Senate in 2018 (more Dem seats than Republican are up then). Everything seems to be on hold till the Republicans control Congress and the White House, quite possible in 2025 after the 2024 elections. Hell of a way to run a country, isn’t it?

    1. Greg said;
      “…..Everything seems to be on hold till the Republicans control Congress and the White House, quite possible in 2025 after the 2024 elections……”

      Dear Greg,
      That is an odd statement. We are now in the middle of a very active and hard fought election, nothing is on hold. The next President will nominate a highly qualified candidate for the Supreme Court who will be ratified in 2017. This will be yet another step towards making America great again. Rejoice!

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Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

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