By james art The upcoming election, less than a week away, could change the U.S. Supreme Court — or not, depending on retirements, deaths or other unforeseen events. The only certainty is political struggle.
Depending on who wins the presidential election, and control of the Senate, the current 6 to 3 conservative supermajority could remain the same, be reduced to 5 to 4, or expand to an even larger and more lopsided conservative majority.
The public for the most part understands that if there is a vacancy on the Supreme Court, the president’s nomination will generally reflect the president’s views. But there is a real possibility that if the Senate is controlled by the opposition party, the vacancy will remain unfilled – not for months, but for years.
Indeed, there is also a real possibility that lower court seats will remain unfilled unless there is significant backroom horse-trading. In short, with a separation of powers between the White House and the Senate, there could be an unprecedented gridlock in judicial nominations that stretches all the way to the Supreme Court and down to the appeals and even district courts.
“The Merrick Garland Treatment”
In recent years, Republicans have used their power in unprecedented ways to prevent the president’s Supreme Court nominee from being confirmed. When conservative Justice Antonin Scalia died unexpectedly in 2016, Senate Republican leader Mitch McConnell immediately announced that no Obama nominee would be considered at all before the election, which was nearly a year away.
Obama went ahead anyway, believing that the old norms would prevail if he nominated a respected and centrist judge, someone acceptable to both Democrats and Republicans. Judge Merrick Garland seemed the best fit, but Garland didn’t even get a hearing, much less a vote. Four years later, after the death of Justice Ruth Bader Ginsburg, Senate Republicans stepped on the pedal just weeks before the election, fast-tracking the confirmation of Justice, now Justice, Amy Coney Barrett.
This year, conservatives are just as determined to maintain or expand their 6-to-3 majority on the Supreme Court. So what happens if Kamala Harris is elected president but the Senate flips to Republican control?
“We’re going to give you the Merrick Garland treatment,” says conservative scholar Josh Blackman, a professor at Texas South College of Law in Houston. “We’ll keep the place open for three or four years,” he says.
A Trump victory and a Democratic Senate
Will the reverse happen if Trump is elected but the Senate remains in Democratic hands?
Democrats like to think of themselves as “more responsible” than Republicans, but the pressure would be enormous to do to the Republicans what they did to the Democrats.
Republicans “essentially crossed the Rubicon” in 2016 with the Garland nomination, says Harvard law professor Noah Feldman, who has written extensively on the court’s history.
“Given that we are in a world of … conflicting revolutionary decisions, no party is likely to give a positive vote to a presidential candidate from the opposite party,” he said.
NYU law professor Bob Bauer, who served as White House counsel for two years in the Obama administration, notes that institutional norms are not necessarily permanent.
The whole idea that “a certain process must be followed regardless of the potential impact on one side or the other,” he says. “It is not a norm if it no longer requires general compliance.”
And what if Trump is elected and the Senate, as expected, goes to Republican control? The only thing then standing between the nomination and confirmation of a new justice appointed by Trump would be two moderate Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine. If the Republican margin in the Senate is 52-48, their votes are not needed; JD Vance will vote for VP even if Murkowski and Collins vote against the nominee.
So what solution would Democrats have in such a situation? How would they fight a Trump nomination? After all, there is no longer a filibuster to block the vote. In 2011, Democrats eliminated lower court nominations in response to Republicans routinely blocking judicial nominations. Republicans then scrapped nominations for Supreme Court nominees in 2017 after Trump was elected and nominated Neil Gorsuch to fill the seat that GOP leader McConnell held after Scalia’s death.
Democrats are only open about it when they talk, not attribution. As one put it: “We’re pretty much going to stick with the policy of personal destruction, investigating every aspect of the nominee’s life to find something that’s disqualifying.”
Unforeseen circumstances
Of course, there is currently no vacancy on the Supreme Court.
Although the deaths of Justices Scalia and Ginsburg prove that nothing is certain, they were much older than any member of the current court. Scalia didn’t make it past 80, and Ginsburg was 87. By contrast, the oldest members of the current court are also among the most conservative. Justice Clarence Thomas is 76 and Justice Samuel Alito is 74, followed by liberal Justice Sonia Sotomayor, 70, and Chief Justice Roberts, 69.
Some of the most politically active conservative thinkers would like to see Thomas and Alito step down for younger conservative justices who could serve many decades longer and move the conservative needle even further to the right. They see as their “farm team” the ultraconservative Fifth Circuit Court of Appeals, populated by former Thomas and Alito clerks whose decisions are often overturned even by current Supreme Court conservatives, including the men they once served.
But those who know Thomas and Alito well are adamant that neither man would leave the court at this point. Several NPR spoke to would speak candidly only on condition of anonymity. “What would he do, go home and wave flags with his wife on the beach?” said one Alito ally, adding that the court was “Alito’s life.” As for Thomas, his friends and former officials say he would see his retirement as “leaving his critics” and “kicking him off the court.”
So, barring retirements or unexpected health crises, the court can remain as is.
A period of dysfunction
This leaves the lower courts, which receive less attention than the Supreme Court, but decide many more cases. In the final year of Obama’s administration, when Republicans controlled the Senate, not a single nominee to the circuit court of appeals was confirmed, although 10 trial court judges were confirmed, a small fraction of the vacancies. The result was that on the day Trump was sworn in, there were 105 judicial vacancies to fill.
Professor Blackman expects that if Harris is elected and Republicans control the Senate, something like this could happen in as many as four years.
“They might just stop by confirming” all the lower court judges, he says.
Other conservatives think that’s too dire a prediction. They expect that, especially in states where both senators are Democrats, there will be horse-trading and a deal that allocates judicial seats — generally, Democrats get one, for example, for every two or three GOP nominees.
Harvard’s Feldman says he sees no light at the end of the tunnel when the parties are divided, with a president of one party and a Senate controlled by the other party. But in his view, dysfunction can lead to change…eventually.
“We could have what I call an incredibly shrinking Supreme Court,” he says, adding that “if we’ve divided the government and we have judges who naturally retire or die and not be replaced, we can go down to eight, to seven. to six and eventually the public might start to notice and complain about it and then some sort of compromise might be reached. However, he admits such a process could take 15 or 20 years.
If he is right, the end of the dysfunction is far away.
Meanwhile, Justice Clarence Thomas, the most senior and experienced judge of the Supreme Court, gives a lesson in longevity and strength. If he serves three more years, he will break Justice William O. Douglas’ 36-year record for longest tenure on the court. In fact, even sooner, when the next president is sworn in this January, Thomas will be making decisions that directly affect his 11th presidential administration.
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