The Next Supreme Court Justice Will Be A Conservative

David Benkof Contributor
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Despite last night’s Republican victories, many Democrats expect to take back the Senate and hold the presidency in 2016. So they think the future of the Supreme Court is theirs to lose.

But a close look at the math shows otherwise. Yesterday’s results overwhelmingly indicate the next Supreme Court justice – and probably the next several – will be conservative.

(For the purpose of this essay, I’m assuming a Democrat victory in Virginia, and Republican wins in Alaska and Louisiana, meaning a 54-46 Senate. If the results are different, this analysis still applies.)

A Republican president elected in 2016 can expect his Court nominees confirmed even with several Democratic pick-ups in the Senate.


Every recent nominee for the Supreme Court has received votes from both parties. Of the 14 Senate confirmation votes since the Ford administration, half the nominees received fewer than 10 “no” votes. For the other seven, the relevant statistic is the number of “yes” votes from the other party, plus the number of “no” votes from their own party. Those numbers are as follows:

Rehnquist 17; Bork 8; Thomas 13; Roberts 22; Alito 6; Sotomayor 9; and Kagan 6.

So if history is any guide, Democrats need at least a 56-44 majority in the Senate to block a Republican-nominated justice. That means they must pick up 10 seats in 2016. The last such blowout for any Senate caucus was the 12-seat gain for Republicans in 1980.

And the specific 2016 Senate map makes a 10-seat gain highly unlikely. Even in the most favorable conditions, the Democrats are unlikely to pick up more than seven seats (New Hampshire, Iowa, Wisconsin, Illinois, Ohio, Florida, and Pennsylvania).

Then there’s what I call 2014’s “most important election you’ve never heard of.” The victory of Nevada Lt. Gov.-elect Mark Hutchison means that state’s extremely popular governor, Brian Sandoval, will likely run for Harry Reid’s seat. A Sandoval victory would reduce Democratic gains by one.

Of course, a Democratic president could be elected while maintaining, increasing, or even losing a few seats from the current Democratic Senate caucus, and confirm a liberal justice. I think that’s unlikely.

The GOP has an overwhelming advantage in the 2016 Presidential race for five reasons:

1) Pool of talent — Unlike two years ago, the Republican Party currently has a deep bench of potential presidential candidates who are interesting and appealing (especially Bush, Christie, Ryan, Kasich, Paul, Jindal, and Rubio). The list of promising vice-presidential possibilities is even longer (all of the above, plus Susana Martinez, Kelly Ayotte, and Tim Scott).

2) Clinton fatigue — The likely Democratic nominee, Hillary Clinton, will have been a fixture in national politics for nearly a quarter-century. By contrast, after Richard Nixon ran for vice president in 1952, only 16 years passed until his election as president. Similarly, Ronald Reagan’s “A Time for Choosing” speech supporting Barry Goldwater’s 1964 campaign came 16 years before his own election. American voters have consistently shown a preference for fresh-faced presidents: Kennedy, Carter, (Bill) Clinton, (George W.) Bush, Obama.

3) Third-term curse — Since 1948, only one presidential candidate has been able to win election when his party held the White House for the previous two terms. That anomaly was George H. W. Bush in 1988. Voters usually tire of any given party’s policies and leaders after six or eight years. That dynamic played out in yesterday’s gubernatorial race in Maryland. Many voters in that deep-blue state were frustrated with two-term Democratic Gov. Martin O’Malley’s tax-raising tendencies and self-aggrandizing style, and elected Republican Larry Hogan to take over.

4) An expanded map — Last night, Republicans won in many states whose electoral votes the Democrats have consistently won. Besides Maryland, Republicans held or gained the governorships in Illinois, Wisconsin, Michigan, Florida, Ohio, Iowa, Nevada, New Mexico, Maine, and Massachusetts. In the U.S. Senate, Republicans held or gained seats in Iowa, Maine, and Colorado.

That’s at least 11 statewide GOP victories in purple and blue states Obama won twice. Of course, not all those states will be contested in 2016, but some of them will be – forcing Democrats to spend money on electoral prizes they usually take for granted.

5) There is no GOP “demographic demise” — The supposed Democratic lock in the electoral college based on growth in Obama coalition just isn’t happening. If Obama doesn’t legalize millions of Latinos, that group will turn against the Democrats in 2016 or at least stay home. (But if he does issue such an executive order, many non-Latinos will be furious that the president thumbed his nose at last night’s mandate.) As for young voters, a smaller percentage of them voted Democrat yesterday than in the previous three cycles. Further, does anyone really think African-Americans will keep up their voter strength without a black presidential candidate? And any Democrat who expects to ride the “war on women” to victory should study the failure of “Mark Uterus” in Colorado.

So a Democratic presidential victory in 2016 is unlikely, and even several new Democratic Senators won’t be able to block a Republican Supreme Court nominee. Given that there are only two young liberal justices (Sotomayor and Kagan), yesterday’s election strongly suggests a conservative court – if not a very conservative court – for at least the next generation.

David Benkof is a freelance writer living in St. Louis and a frequent contributor to the Daily Caller. Follow him on Facebook or Twitter (@DavidBenkof); or E-mail him at DavidBenkof@gmail.com.