Constitution Check: Will there be more Obama appointees on the Supreme Court?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser,looks at how the process of picking and processing new Justices of the Supreme Court has only grown more politically sensitive in recent years.

800px-Supreme_Court_US_2010“I need a Democratic Senate. Not to mention the fact that we’re going to have Supreme Court appointments, and there are going to be a whole host of issues that many people here care about that are going to be determined by whether or not Democrats retain the Senate.”

– President Obama, in remarks Monday at a fund-raising event while vacationing on Martha’s Vineyard off the coast of Massachusetts. The White House said later that the President was not hinting that he knew of any likely vacancies on the high court.

WE CHECKED THE CONSTITUTION, AND…

The President’s power under the Constitution’s Article II to “nominate judges of the Supreme Court” puts no limit on when he can propose such nominees and does not dictate when – or even whether – the Senate must act on them by giving its “advice and consent.” Thus, President Obama, with well over two years left in office, could legitimately anticipate being able to put more of his choices on the Supreme Court.

But is that realistic? What is constitutionally allowed may not necessarily be politically within reach.

President Lyndon Johnson learned that in 1968 in a way that has shaped the history of the Supreme Court ever since. He wanted to replace Chief Justice Earl Warren, who planned to retire that year, with sitting Justice Abe Fortas (a close confidant of President Johnson). Senate Republicans filibustered the Fortas nomination, and he then withdrew. Republican Richard Nixon won the presidency soon after that, and then named Warren Burger to the chief justiceship.

What Supreme Court Justices have learned from that episode is that it is not a good idea to retire in an election year, because there is always a chance that your successor will be blocked – a strategy motivated by a desire to see how the election turns out. And what presidents have learned is that there won’t likely be openings to fill in those election years, at least not as a result of voluntary retirements.

The fact that no current Justice has left the court this year may be due (and probably is due mainly) to the fact that none of them actually seems to believe that it is time to retire, and their health has allowed them to continue.   But it is likely also true that the Abe Fortas incident is a factor in the background and, had a Justice chosen to step down this year, there might not have been a successor cleared by the time the new term opens in October.   The Justices, too, know that this is an election year, and their loyalty to the institution means that they do not want to leave it short-handed because a successor does not get approved. (Earl Warren served another term as Chief Justice after the Fortas episode, to keep the court at full membership.)

Assume, then, that the most likely time for one of the present Justices to retire would be at the end of the coming court term – that is, after late June next year (a non-election year).   Justices, if the choice is open to them, usually opt to retire after a term has ended. Obama would still be in the White House then, and he could proceed to nominate a successor for that seat on the court.

If the President does get that option next year, what are the political considerations that might influence what happens?

If the Democrats retain control of the Senate as a result of this November’s elections, as the President hopes, would they have enough votes to overcome an almost certain GOP filibuster against any nominee?   Recall that Supreme Court nominations are not subject to the no-filibuster rule that now applies to lower court judicial nominations and to Cabinet appointments. Why wouldn’t the Republicans, holding enough seats to sustain a filibuster, want to keep that open seat for the president to be chosen in 2016 – especially since the anti-Obama sentiment is very strong among Republicans in Congress, who increasingly question his legitimacy?

Alternatively, if the Republicans take control of the Senate after this year’s election (a prospect that many political pundits are anticipating), it might be that an Obama nominee to the Supreme Court could not even get out of the Senate Judiciary Committee, or ever be put to a vote on the floor. Again, what is the political benefit to the GOP of allowing this President to select another Justice?   Would they rather risk having the Supreme Court with less than a full bench, if that was the possibility, than giving up a seat to Obama?

Although most observers think that the most likely retiree in the next year or two would be Justice Ruth Bader Ginsburg, she has been telling anyone who asked that she plans to stay a while longer. Suppose, then, that fate intervenes, and one of the conservative members of the court steps down or departs. There does not appear to be much of a chance that Republicans in the Senate would let Obama fill a seat in that situation, probably creating a liberal or at least a moderate majority on the court.

The entire process of picking and processing new Justices of the Supreme Court has only grown more politically sensitive in recent years, and the deepening polarization in America’s politics in general puts the future of the Supreme Court in the midst of that fierce partisan struggle.   It thus seems probable, if only for the most blatant political reasons, that the next vacancy on the court will get filled by the president who gets elected in 2016.   What happens to the Senate this November may not change that outlook at all.

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