An Adult Conversation About The Fight To Fill Justice Scalia’s SCOTUS Seat

This post originally appeared at Election Law Blog. It was reprinted here with permission of the author.

Can we have an adult conversation, at least for a moment, about the open seat on the Supreme Court caused by the death of Justice Antonin Scalia, and President Obama’s attempt to fill that seat?

Very much like how the Supreme Court itself decides cases, the current debate over a SCOTUS nomination is full of lofty empty rhetoric and reliance on questionable precedent by all sides, when in fact the only real question is who will win a political power struggle over an increasingly political institution.

Sure, it is easy to dismiss the Republicans who, in saying they will deny a hearing, and even a meeting, with an eventual Obama nominee, rely on the so-called “Biden” rule in which Vice President Joe Biden, then a U.S. Senator and head of the Senate Judiciary Committee, said in 1992 that President George H.W. Bush should not nominate someone for the Supreme Court should a vacancy open before the end of his term. Democrats and Republicans have volleyed historical precedents back and forth, over issues such as how Justice Abe Fortas was treated in the 1960s, and nominations going back much further.

And then there is the Wall Street Journal op-ed by Josh Blackman and Ilya Shapiro, conveniently saying that it is no big deal that there will be some 4-4 splits on the Supreme Court. So what if the contraceptive mandate is constitutional in some parts of the United States but not in others? So what if the Court cannot decide major questions about the legality of closing most abortion clinics in a state, the President’s power over immigration, and the permissibility of Environmental Protection Agency regulations to combat climate change?

But it is not just Republicans playing this game. Some Democrats are protesting loudly that the Constitution demands for the Senate to consider an Obama nominee.

Is there any real doubt that if we were in the last year of the George W. Bush administration with a Democratic Senate, the Democrats’ arguments would be flipped with the Republicans? The Biden rule tells us what the answer will be.

Miguel Estrada (himself blocked by Democrats for a judgeship which would have been a stepping stone to the Supreme Court) and Benjamin Wittes are right: there are no more rules about nominations to the Supreme Court, just political struggle.

Then there is the President, who took to blogging at SCOTUSBlog to tell us he wants to nominate someone “who understands that a judge’s job is to interpret the law, not make the law.” But the President knows better than to make a comment equivalent to Chief Justice Roberts’ claim that he’s like an umpire that just calls balls and strikes.

Here’s what Obama argued when he announced why he was voting as a Senator against the nomination of John Roberts to be the Chief Justice of the United States:

It is absolutely clear to me that Judge Roberts truly loves the law. He couldn’t have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95% of the cases that come before the federal court — adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts.

The problem I face — a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts — is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95% of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95% of the cases — what matters on the Supreme Court is those 5% of cases that are truly difficult.

In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

So if we cut through all the hogwash about precedents, and what the President’s obligations are, about letting “the people” decide, about the difference between “interpreting” and “making” law, the dispute comes down to a political power struggle.

On the most important issues of the day—from gun rights to abortion rights, from climate change to voting rights, from consumer protection to campaign finance—-who sits on the Court matters. This is why before Justice Scalia’s death I called control of the Supreme Court the most important civil rights issue of the 2016 elections. Justices chosen by Republican presidents are very, very likely to have one set of views on these issues while Justices chosen by Democratic presidents are going to have the opposite set of views. This is not because these Justices are consciously acting to help their parties. It is because nominees are chosen for their jurisprudential commitments and worldviews which line up with what the parties care the most about.

Whether President Obama’s nominee ultimately gets a hearing and a vote depends upon a raw struggle for political power in a zero-sum game. And it is one likely to repeat itself a few times during the next presidency, as up to three more vacancies open up.

My own view is that there should be a hearing because I want a progressive majority on the Supreme Court. It is the only path I see to campaign finance reform and other issues I care about.

For the current vacancy, I expect the best predictor of how far the nominee will get depends upon polling among endangered Republican Senators up for reelection. If Mark Kirk or Kelly Ayotte appear to be in trouble, and Senate obstinacy on this issue appears to be part of the reason, Senate Majority Leader could well relent. Because the one thing that is probably worse to McConnell than a liberal Supreme Court is losing his Senate majority in 2016.

OK, now we can all go back to the fake rhetoric, debate about what happened in the Senate in 1880 and watch both sides accuse the other of hypocrisy.

[Update: Josh Blackman responds here as to the part of my post addressing him and his co-authored article entitled “Only Eight Justices? So What.” He points to another post of his on the expected 4-4 splits this term.]