The Supreme Court’s Coming Paralysis

With the U.S. Supreme Court evenly divided except for Justice Kennedy's swing vote - which often comes across as that of someone suffering bi-polar disorder since each of his progressive rulings is offset by a frighteningly backward one - many fear what will happen if one of the "liberal" justices dies or is forced to retire.  Why the fear?  Because the Republicans in the U.S. Senate could balk and refuse to confirm an Obama appointee thereby leaving the Court paralyzed.  Sadly, such paralysis would be consistent with the GOP's push to shut down government through any means possible.  A piece in The Daily Beast looks at the possible nightmare scenario.  Here are some highlights:

It’s a question that’s roiled the liberal universe for years: Why won’t 81-year-old Supreme Court Justice Ruth Bader Ginsburg resign from the Supreme Court and give President Obama the chance to pick her successor, in case the Senate turns Republican after the mid-terms?

Harvard Law Professor Laurence Tribe, one of the left’s jurisprudential heroes, had a ready answer to that question when it was posed to him at the University of California Santa Barbara late last month. There is, he said, not a chance in hell that this Senate would confirm her successor, no matter who he or she might be—not the way the process works today. And therein lies a tale about just how drastically the “advise and consent” process has changed, and why the smart bet would be on a paralyzed process, and perhaps even a Court with fewer than nine Justices, no matter what happens in November.

Once upon a time, the Senate took that “advise and consent” phrase of the Constitution literally: They sometimes advised, but almost always consented, to a President’s choice. From 1894 to 1967, only one Supreme Court nominee was rejected.
But it wasn’t until 1968 that a President found his Supreme Court pick blocked. When Lyndon Johnson sought to elevate Justice Abe Fortas to the Chief Justice post to replace Earl Warren, a coalition of Southern Democrats and Republicans, angered by his liberal votes on civil liberties, his continued political counseling of LBJ, and some dicey financial dealings, successfully filibustered the nomination.

At that point, the process took a sharply different turn—to outright rejection of a nominee. President Nixon’s choice of Judge Clement Haynesworth to replace Abe Fortas was soundly defeated, 55-45, by senators who believed—not entirely accurately—that Haynesworth had demonstrated anti-labor and pro-segregationist tenancies in his rulings, and that he had had a financial interest in one of the cases he helped decide.

Nixon’s second nominee, Federal District Judge Harrold Carswell, may well have been the single least qualified nominee ever . . .

In these two cases, something other than ideology was, at least ostensibly, at stake—qualifications or some kind of impropriety. 

Not so in the case of Judge Robert Bork, whose background as a Yale law professor and federal judge made him clearly qualified on intellectual grounds. The case against Bork was, in the broadest sense of the word, “political”—that his views on privacy, civil rights, and other issues put him “outside the mainstream.”

This might suggest that the future of any prospective Obama nomination will turn on who winds up controlling the Senate; except, of course, it doesn’t. When Senate Majority Leader Harry Reid invoked the “nuclear option” last November, which ruled the filibuster out of order with respect to lower federal court judges, he explicitly exempted the Supreme Court. That, of course, only explains what a Senate minority can do. It’s the current political climate that tells us what Senate Republicans, whether in the majority or minority, are likely to do.

Now ask yourself a question about today’s Senate: How many of the 45 Republicans now in the Senate would break with their party and vote to end a filibuster of an Obama Supreme Court appointment? How many would risk a Tea Party primary opponent, or a talk radio onslaught, and step away from a fight to stop Obama from putting a pro-choice, “living Constitution” Justice on the Court for the next generation?

And if that meant leaving the Court with only eight justices—or seven, should a second vacancy develop—the Republican minority would be more than happy to live with that.

Given the zeal with which the Republican base argues that Obama is a lawless, Constitution-shredding chief executive, it is an easy step to argue that we should wait until a new chief executive is chosen in 2016.

If this analysis is correct, then what happens in November almost doesn’t matter. Yes, a Republican Senate takeover would give the GOP control of the Judiciary Committee, which means that all federal judicial nominations might die a slow but certain death. But even if the Democrats hold the Senate  . . . . the likeliest outcome of any Supreme Court nomination is a filibuster and a vacancy or two that will endure until the country chooses a new President.

Today's GOP is truly a menace to the country.