The Morning Jolt

Law & the Courts

Living Under the Sword of Damocles That Is Elderly Supreme Court Justices

Supreme Court Associate Justice Anthony Kennedy arrives for the funeral of fellow justice Antonin Scalia at the Basilica of the National Shrine of the Immaculate Conception in Washington, February 20, 2016. (Carlos Barria/File Photo/Reuters)

For at least a generation, we’ve lived with elderly Supreme Court justices. Last year, David Ingold of Bloomberg noted, “With two current justices more than 80 years old and a third joining them next year, the projected age when a justice will leave the Supreme Court is now about 83 — that’s a 10-year increase from the 1950s.”

We live in an era of judicial supremacy, decisions that some would argue constitute judicial activism . . . and in any given year, at least a handful of justices who are old enough to join the cast of a reboot of The Golden Girls. It’s sort of a Damocles Sword for our system of laws — at any given moment, one of the nine might announce a retirement or move on to the Pearly Gates and suddenly “alter the balance of the Court,” ushering in a period of dramatically different interpretations of the First Amendment, Second Amendment, the commerce clause, and “emanating penumbras” than just a few years earlier.

However, it’s fair to wonder just how much Justice Anthony Kennedy’s departure will really alter the dynamic on the Court. (For what it’s worth, he voted with the “conservative” majority on 15 out of 20 cases this term.) Those of us who can remember the era of Sandra Day O’Connor will recall her as the perceived “swing vote” and a time when Kennedy was considered a reasonably reliable ally to Antonin Scalia, Clarence Thomas, and, sometimes, William Rehnquist.

We’ve already seen Chief Justice John Roberts, appointed by George W. Bush, shock the world and outrage the Right by ruling that the individual mandate in Obamacare was indeed constitutional. In all likelihood, the appointment of one of the reliably strict-constructionist judges on President Trump’s pre-election list of potential nominees will move the Court one notch in the right/Right direction . . . but only one notch. There’s always going to be one justice who is the least rightward justice on the right, or the least leftward justice on the left, and that person will realize that they are, arguably, the most powerful person in the country. Quite a tempting position to be in.

President Trump appointed Neil Gorsuch, and he will name a replacement for Anthony Kennedy soon and, in all likelihood, have that nominee confirmed (more on that below). As noted last night, Ruth Bader Ginsburg is 85 and Stephen Breyer turns 80 in August. Justice Clarence Thomas is 70.

We never know what the future holds, and all of those justices may very well serve until after Trump leaves office. But it’s also not hard to imagine a scenario where Trump appoints replacements for one or two of them, or maybe all three — perhaps even before the 2020 presidential election.

The last four presidents each appointed two justices; Reagan appointed three, Carter none, and Gerald Ford appointed one. You have to go back to Richard Nixon to find a president who named four Supreme Court justices. (Finally, a Nixon comparison that this White House probably wouldn’t mind.)

The Coming Senate Fight, After ‘One of the Biggest Political Blunders in Modern History’

The U.S. Senate currently consists of 51 Republicans and 49 Democrats (counting Angus King and Bernie Sanders, because they caucus with the Democrats).

If every Democratic senator voted “no” — not a guarantee — they would need not one Republican to flip, but two, because a 50-50 tie would be broken by Vice President Mike Pence.

There is the complication that John McCain, undergoing cancer treatment, hasn’t cast a vote since December. Currently in Washington, there are 51 Republican senators but only 50 Republicans present. But that still leaves Republicans with a 50-49 advantage on any party-line votes. (It is conceivable that by the time the Senate holds its confirmation vote, McCain could be still undergoing treatment and unavailable to vote . . . or it’s possible that the governor will have appointed a replacement if McCain chooses to retire or has moved on to his heavenly reward.)

It is exceptionally rare to see a Republican senator vote against a Republican president’s Supreme Court nominee — presuming, of course, that nominee gets a vote; Harriet Miers withdrew her nomination. No Republican voted against Neil Gorsuch. One Republican voted against Samuel Alito — Lincoln Chafee, who by that time had virtually left the GOP by any . . . metric. No Republican voted against John Roberts. Bob Packwood and Jim Jeffords voted against Clarence Thomas. No Republican voted against David Souter. No Republican voted against Anthony Kennedy.

Yesterday on Twitter, I saw Democrats wishcasting, “We just need to persuade three Senate Republicans to vote No to block Trump’s nominee!” (As noted above, it’s technically two, but maybe they’re expecting one of the three Democratic senators who voted for Gorsuch to vote for the next nominee.) This is where I want to insert the “one does not simply” meme of Boromir from The Lord of the Rings.

Guys, you’ve had three Republican senators vote no on a GOP president’s nominee, in total, since 1991. Presuming the nominee is qualified and scandal-free and doesn’t completely slip on a banana peel in the confirmation hearings, you’re going to have a tough time peeling away even one GOP senator. Voting against a qualified Supreme Court nominee and derailing that nomination because of Democratic pressure is a career-ender for any GOP senator.

But a unanimous Democratic caucus is not guaranteed. Democrats Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota, and Joe Donnelly of Indiana voted for Gorsuch in April 2017. All three are running for reelection in red states. Assuming the confirmation vote is in late summer or early fall, all three will face the decision of voting “Yes,” and being able to tout their independence and difference from the rest of the party, or voting “No,” and handing their GOP opponents a major issue for the final months of the campaign. (It is also conceivable that by early fall, Manchin, Heitkamp, or Donnelly or perhaps all three appear to have no chance in November and may feel free to vote “No.”)

For what it’s worth, the gang at SCOTUSBlog predicts, “Any serious potential nominee is — barring a shocking discovery — essentially a lock to get at least 55 votes. The vote will be before the midterms. Democratic Senators defending seats in states Trump won have little to gain and lots to lose in opposing, because they can’t block the nominee.”

Up until last year, Democratic senators could have contemplated filibustering the nominee. The first filibuster of a Supreme Court justice was Lyndon Johnson’s nomination of Abe Fortas — who was already on the Court — to become chief justice in 1968. Then in 2006, some Senate Democrats — including then-senator Barack Obama, as well as Dick Durbin and Chuck Schumer — attempted to filibuster Samuel Alito, but they only had 25 votes. (By 2016, President Obama said he “regretted” his attempt to filibuster Alito.)

In 2013, frustrated with how the Republican Senate minority was using the filibuster, Majority Leader Harry Reid and the Democrats nuked the filibuster for judicial nominees except for the Supreme Court. On October 24, 2016, when everyone thought Hillary Clinton would win the presidency, the retiring Reid said he expected that Senate Democrats would nuke the filibuster for Supreme Court nominations as well.

But the electorate threw a curveball, and suddenly it was Senate Democrats who wanted to use the filibuster to block a nomination from President Trump, Gorsuch — even though, as many observed at the time, naming Gorsuch to Scalia’s old seat didn’t really change the dynamic of the court. Some observed that Democrats would be wiser to keep the filibuster in their back pocket for when they really needed it — like the replacement for Kennedy. Instead, Democrats attempted a filibuster, and Republicans nuked the filibuster, citing Harry Reid’s 2013 decision as precedent. Jan Crawford, legal analyst for CBS News, called squandering the filibuster on the Scalia’s replacement “one of the biggest political blunders in modern history.”

Actual CNN Column Sub-Headline: ‘All White Men Are Not the Evil Empire.’

Jen Psaki — former Obama White House communications director, and also a former employee of defeated New York representative Joe Crowley — notices that a lot of progressives saw Tuesday night’s surprise finish entirely through the lenses of race, age, and gender.

The progressive Twittersphere is making it sound like the defeat of Joe Crowley is akin to defeating a combination of Darth Vader and Donald Trump. This is not only ludicrous, it is missing the point. A liberal-leaning immigration advocate who voted with progressives most of the time is not the enemy. The enemy is sitting in the White House. And he won’t be defeated if liberal-leaning white men are not allowed to be a part of the fight.

This is where we are, folks. Former Obama administration officials are trying to restrain excessive obsessiveness with identity politics.

ADDENDUM: A funny comment on my Facebook page about the Democratic calls to abolish ICE: “Can’t I just celebrate — for one brief second — that there’s a Democrat somewhere, anywhere, that supports abolishing a federal agency?”

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