The Looming Crisis Over Supreme Court Nominations

Whether or not it happens in 2017 — and it could! — a constitutional crisis over Supreme Court nominations is almost certain to happen inevitably. In my howlingly unfunny debut at the New Republic, I explain why:

If President Clinton or Sanders faces a Republican-controlled Senate, though, all bets are off. The conventional wisdom is that Republicans will simply not be able to institute a blanket ban on Democratic nominees. Supreme Court nominations will have been unusually central to the recently completed election, and Clinton or Sanders would claim a mandate to appoint Scalia’s replacement. Pressure from the media, voters, and probably other justices would mount, leading a handful of blue-state Republican senators to defect.

This is certainly possible, but it would be foolish to simply assume that it will happen. A “mandate” is not actually some magic source of power—a president’s mandate on Supreme Court appointments is what the Senate says it is. Marginal Republicans will face powerful countervailing pressures from congressional colleagues, interest groups, and base voters. Any Republican senator who votes to put a liberal on the Supreme Court would almost certainly face a fierce primary challenge.

Serially obstructing Supreme Court nominees would probably be bad for the popularity of the Republican Party, but senators are surely aware of the paradox demonstrated in 2012 and 2014: Actions that are bad for the Republican Party as a whole aren’t necessarily bad for individual Republican members of Congress.

This would, in other words, be simply uncharted territory. Anyone who has watched Senate Republicans perfect constitutional hardball cannot have any certainty that they will adhere to previous norms and prevent a vacancy from persisting for years.

Even if a constitutional crisis is averted in 2017 by either one party controlling both the White House and Senate or a Senate majority acquiescing to a president of the opposite party, a breakdown in the Supreme Court nomination process is almost certainly coming down the road. The advice and consent process established by the Constitution isn’t well adapted to disciplined, ideologically cohesive parties, and the evolution in partisan configuration will have mutually reinforcing effects.

The Supreme Court has typically been a centrist institution, and since early in the Nixon administration the typical median vote on the Court on politically salient issues has been a country-club Republican: Potter Stewart, Lewis Powell, Sandra Day O’Connor, and/or Anthony Kennedy.

But as the University of Maryland legal scholar Mark Graber argued in an important recent paper, there is nothing natural or inevitable about this. The typical centrism of the Court was driven by two factors—ideologically heterogeneous parties and relative elite consensus—that have vanished. Moderate Republicans will not control the Court, because for all intents and purposes they no longer exist. For the foreseeable future, the median vote on the Court will reliably vote with the liberal or conservative faction on politically salient issues, and the gap between liberal and conservative constitutional visions is likely to get wider.

As the stakes of Supreme Court nominations get ever higher, getting Court vacancies filled during periods of divided government is going to become increasingly difficult. Depending on the results of the 2016 elections, this dysfunctional future could very soon become our present.

Party polarization, in other words, will create a mutually reinforcing cycle that will escalate conflicts over Supreme Court nominations. Norms of Senate deference were sustainable in part because party coalitions were loose and in part because the Supreme Court generally produced outcomes that were acceptable to most political elites. Even as elites have become more polarized, the Court has given enough wins to both sides that as long as someone like Kennedy remained the median vote an opposition Senate would confirm a replacement. Scalia’s death ends this era, and everyone knows it. It’s a serious problem.

Ian has more on the institutional roots of the inevitable crisis. Giving the Senate full veto power over executive and judicial branch appointments with no mechanism for resolving a deadlock was a really bad idea, and it’s frankly amazing that the system has remained functional for as long as it has. The luck of the Founders is about to run out.