Bench Memos

Obama vs. Romney on the Supreme Court—Part 2

Continuing from my Part 1 post:

Second: The president will have the upper hand in getting his Supreme Court nominees confirmed.

It now seems likely that neither a re-elected President Obama nor a newly elected President Romney would enjoy a large same-party majority in the Senate. There is no plausible prospect in which either would have a filibuster-proof supermajority of 60 senators. Indeed, it’s possible that each would face a Senate that, by a narrow margin, is controlled by the opposite party.

Nonetheless, there is ample reason to believe that either president, without compromising on judicial philosophy, could get his Supreme Court nominees confirmed.

One big advantage that the president has is the ability to define the battle by the nominee he selects. If the Senate majority is tight or in the hands of the other party, a president may well pass over candidates whose records have red flags that might trigger objections. But, both on the Left and on the Right, there will be plenty of candidates who, by judicial philosophy, are similar to the passed-over candidates.

A nominee who has excellent objective credentials and who is personally appealing is a safe bet to win confirmation in a Senate with a majority, no matter how narrow, of the same party as the president. Even in a Senate narrowly controlled by the opposite party, some opposite-party senators will likely find it unattractive to oppose such a nominee. Indeed, in an odd way, the fact that a nominee might be defeated will make it more difficult for opposite-party senators from moderate states to oppose the nominee—because they will be more likely to arouse in-state criticism for doing so. (Senators usually find it easier to explain away why they voted for a nominee than why they voted against.)

Don’t be misled by the successful filibuster votes on federal appellate nominees, first by Senate Democrats on ten nominees in George W. Bush’s first term (three of whom were confirmed in Bush’s second term), then by Senate Republicans on three Obama picks. The public pays very little attention to lower-court nominations, and senators therefore don’t risk much in filibustering those nominations. But the public will expect an up-or-down vote on a Supreme Court nominee and—unless a strong case has been made against the nominee—is much more likely to punish senators who block such a vote.

Third: President Romney will nominate strong judicial conservatives, and President Obama will nominate diverse judicial liberals.

I’m often asked whether I trust Mitt Romney to nominate good conservative justices. My standard response is that I don’t trust any Republican president to do so. What matters instead is that Romney will have the clear incentive to make strong picks.

Although it is dispiriting to contemplate the fact that every Republican president back to Eisenhower has made at least one serious error, the happy reality is that the Harriet Miers episode marks a fundamental change: The conservative base, now highly mobilized over Supreme Court nominations, will no longer accept the White House’s word on a nominee. It will insist on a high-quality pick, and it will inflict severe political costs on a White House that makes a suspect pick. This is the Harriet Miers lesson, a lesson that the Romney White House should clearly understand.

Fortunately for Romney, he will have a deep bench of outstanding, and relatively young, candidates to choose from.

As importantly, the political triumph of judicial conservatism means that the Romney White House should be confident not only that it will succeed in getting a strong nominee confirmed but also that it will win political capital in the process.  

The Democratic base will constrain Obama (or perhaps reinforce his own instincts), but in a way that elevates diversity at the expense of quality. Leftist critics of the Sotomayor nomination recognized this dynamic at work.

Another telling illustration comes from Tom Goldstein’s reflection on Obama’s next nominee. SCOTUSblog’s Goldstein is a savvy observer and very well-connected with folks in the Obama administration, so it’s particularly striking that, even in the aftermath of Obama’s appointments of Sotomayor and Kagan, Goldstein thinks it “inconceivable” that Obama would nominate a man to replace Justice Ginsburg. It’s even more revealing that the “ideal nominee” that he comes up with for Obama, California attorney general Kamala Harris, has zero judicial experience and offers no evidence of being an intellectual heavyweight. For much of Obama’s base, the fact that she would be the first African-American female on the Court more than offsets those deficiencies.

To sum up: The future of the Supreme Court is at stake in this presidential election. If Mitt Romney is elected, he will very likely succeed in appointing strong conservative justices and (depending on which vacancies arise) in dramatically improving the Court. But if Barack Obama is re-elected, he will entrench liberal seats for another generation and (again, depending on the vacancies) may well swing the Court sharply to the Left.


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