Why Supreme Court Timing Means More and Less than Partisans Indicate

In many ways, Supreme Court Justice Antonin Scalia reflected the best of America: a clarity of vision, guided by integrity and a commitment to principles. 

Immediately following his unexpected death, judicial colleagues and political partisans — conservative and liberal — praised Justice Scalia’s contributions as a principled and colorful jurist. But long before the clock struck midnight on the day his death was announced, elected leaders’ tributes to Justice Scalia had devolved into a public power struggle.

The respect liberals and conservatives alike showed Justice Scalia evaporated, as fiercely partisan politics prevailed. In the heat of a presidential debate that evening, the Republican presidential contenders declared the Senate would not, and should not, approve anyone nominated by President Obama. Senate Majority Leader Mitch McConnell (R-Ky.) said the same thing. Democrats responded quickly, calling the move unprecedented, unnecessary and harmful.

The passion is understandable. Justice Scalia’s death was unexpected. Over the past half-century, it has typically been retirement that pushes Supreme Court justices off the bench. In the past 80 years, only two justices have been confirmed in a presidential-election year — but both of those seats became vacant the prior year.

Democrats are correct that the Constitution requires the president to nominate Supreme Court justices. Republicans are correct that it is the Senate’s prerogative to advise and consent with respect to such nominees.

By the time Obama vets and nominates a candidate, and the Senate runs background checks, schedules hearings, sets a Judiciary Committee vote and sends a candidate to the floor, it could be fall of 2016. That’s if the Senate chooses to hold a vote on a presidential nomination — they’re under no obligation to do so.

In this highly partisan atmosphere, the first candidate may be unacceptable, regardless of credentials. So a late-2016 nomination might as well be an early 2017 nomination for the next president. If Democrats win the White House or make inroads in the Senate this fall, McConnell may regret that he didn’t consider Obama’s choice.

A more prudent option would be to let the nomination process play out. President Obama should be highly motivated to nominate a centrist candidate.

Senators can show their respect for the Constitution and the process, while still investigating the nominee and orchestrating a full Judiciary Committee hearing. If the nominee is credible and survives the process without scandal, a vote would be appropriate.

Through this nomination process, the Supreme Court will be less effective. Historically, many landmark decisions have been decided by one vote. Chief Justice John Roberts has already hinted that some of the cases may be held over for reargument until nine justices are seated. Others may simply be decided 4-4, allowing the appellate court decisions to stand.

Justice Scalia’s death has changed the dynamic in at least three pending cases involving hot-button issues: unionization, immigration and carbon emissions.

Waiting a year to fill Justice Scalia’s vacant seat would both prolong national uncertainty and delay our nation from moving forward. And if we have another “Bush v. Gore”-style contested election with an eight-person court, today’s national fissures could become dangerously uncontrollable chasms. 

But there is one long-shot option that could defuse the situation: Seat a full court this year and allow it to do its work.

Justice Ruth Bader Ginsburg has health issues and faced some pressure in recent years to retire, so if she agreed to retire, then Obama could replace her with a justice who holds similarly liberal views.

It would be unorthodox and unprecedented, but Justice Ginsburg could initiate a deal to retire now with the understanding that Obama and Sen. McConnell would each choose one justice whose nomination would be paired with the other. (Both sides, for example, could be required to give the other side a limited number of choices, and the other party would choose one from the list.)

For this plan to work, either both or neither of the nominees would have to be confirmed. This solution requires a nontraditional discussion among Justice Ginsburg, Obama and McConnell, and an unusual level of trust and publicity.

However, it is not unprecedented: Many political nominees to ambassadorships and other posts get through the nomination process only by being paired via political leadership deals with nominees from the other party.

More than 39 percent of Americans now self-identify as independents — a greater percentage than those who identify with either political party. Our future is too important for the shenanigans and absolutist positions the political parties are taking. No wonder the nonpartisan group No Labels is attracting so many Americans with its philosophy of breaking partisan gridlock.

This historic twist of a Supreme Court vacancy during a bitter presidential election year is not helpful for moving our nation forward. Reasonable leaders on both sides should start talking to one another and solving our biggest problems. And near the top of their list is finding reasonable solutions to keep our Supreme Court functioning effectively.