Supreme Impasse (Q and A)

In February Supreme Court Justice Antonin Scalia passed away, leading to contention in the Senate over the nomination of a new justice. With Republicans arguing that President Barack Obama should defer to the next president and Democrats anxious for a like-minded appointee, the stakes couldn’t be higher for the future of the country’s highest court. We explored the path to a nomination, as well as the political ramifications of a drawn-out process, with Rogers Smith, Christopher H. Browne Distinguished Professor of Political Science and associate dean for the social sciences.

Blake Cole: There’s been a lot of talk about a tradition of not appointing a new justice in the last year of a lame duck presidency. How much truth is there to this?

Rogers Smith: There have been a number of nominees advanced during the last year of a presidency, and even some, albeit fewer, advanced during the last year of a president who is not eligible for reelection. In most of those instances, the president was of the same party that controlled the Senate, however, so there wasn’t really a controversy like the current one over whether President Obama should do this or not. President Reagan did nominate an appointee in the fall of ’87 who was confirmed in ’88, and that was a situation in which a lame duck president was proposing a candidate to be approved by the rival party. But those situations are rare in U.S. history.

The question of what they should do is not a question of what the constitution requires them to do. It is a question of what is the responsible use of their constitutional power—a question of leadership. And it is an unfortunate aspect of our current political context that we speak so much of constitutional requirements and not so much of good leadership and good statesmanship. In fact, good statesmanship has a kind of quaint sound. And yet it is really what’s at stake here. It’s what we should be focusing on.

BC: What are your initial thoughts on the nomination of Merrick Garland?

RS: As expected, President Obama has nominated a centrist jurist with sterling credentials in Merrick Garland. In ordinary times he would be confirmed easily. Currently Senate Republicans are maintaining their refusal to hold hearings, and they are likely to persist in doing so unless it becomes clear they face major political costs. If Hillary Clinton is nominated and elected, however, Garland is likely to be confirmed—either soon after the election, because Republicans will fear a more liberal nominee, or after she assumes office, because she actually will not want to back away from such a broadly acceptable choice. If Ted Cruz is nominated and elected, obviously Garland will never be confirmed, and if Donald Trump is nominated and elected, there is no predicting what will happen to Judge Garland or, indeed, American constitutionalism as a whole.

BC: Historically, have nominations always been this partisan and controversial? Or is that a symptom of modern politics?

RS: Nominations have not always been as contentious as they are now, but they have almost always been influenced by partisan considerations. It is the president who nominates Supreme Court justices, and presidents very rarely nominate Supreme Court justices that they suspect will have constitutional views that diverge sharply from their own. They believe they were put in office by the people in part because of their constitutional views, and so they have a mandate to appoint similar justices. But that inevitably means that the presidents are selecting on grounds that can be viewed as partisan.

There are exceptions. Dwight Eisenhower appointed a Democrat, William Brennan, who became the liberal leader and intellectual leader of the Court, thereby greatly disappointing Eisenhower. But Eisenhower did it not in a way that was unconnected from partisan considerations, but precisely because Eisenhower was trying to present himself as a consensus bipartisan leader. And so it made sense for him to reach out to Brennan. But even then he regretted it. And so subsequent presidents have been reluctant to take that course, as most presidents were before Eisenhower.

BC: What are President Obama’s options for pushing Garland through without Senate approval?

RS: He can make an interim appointment. And, indeed, I think Justice Brennan was initially an interim appointment that was then confirmed when the Senate came back into session. There have been such appointments in the past. It’s more risky for Obama to do it in that it will be viewed as a provocation. And it’s quite likely that the interim appointment would not be extended. Obama will have opportunities any time the Senate goes into recess. But he’s already had the courts rule against him on making recess appointments, and he was indeed pushing his powers to the hilt of, if not beyond, their constitutional limits. I don’t think he’d do that in this case. He’ll wait until they’re in recession for more than a month in the summer or something like that.

BC: Do you think national polls will put pressure on Republicans to vote on Garland?

RS: One scenario that is becoming increasingly plausible is if Republicans in the Senate face a fall campaign with Donald Trump as their candidate, and if the polls are telling them that not only Trump will lose but that they risk losing control of the Senate, Republicans in Congress may seek to distance themselves from Trump. At that point, Republicans might be more receptive to an attractive candidate nominated by Obama. And they will be appealing to not just the Republican primary party base, but to American voters in general. But they would do that only if the polls showed them that they were in real danger of losing their jobs in the Senate.

BC: Might Republicans worry that if the Democratic presidential nominee is pulling ahead in polls, a Democratic president could push through an even more liberal choice?

RS: It’s speculative, but having faced a powerful left insurgency campaign in her own party, Hillary Clinton as president might have some temptation to make a Supreme Court appointment that would satisfy that part of her base.

BC: What are the ramifications of having only eight justices?

RS: It’s likely that we will have four-four decisions in a number of major cases. We can’t know how many. Then the lower court decisions will be left to stand. They won’t be affirmed. They won’t be Supreme Court-endorsed. But they will stand in their circuits as governing rulings. That will mean that Obama’s immigration actions are invalidated, but that decisions on the rights of public sector workers’ unions to engage in collection of dues to cover their activities will survive. And it will mean that affirmative action in the Texas university system can also survive in the limited form that it now exists. But that’s just if the Court is four-four on those, and at least now it looks like it will be. So the country and the Court can survive reasonably well with eight members for a year or so. But, especially given the fact that the political polarization in the country is visible on the Court, it will hamper the institution.