KOLB: Supreme Court Nominations And Power Politics

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Charles Kolb Deputy Assistant to George H.W. Bush
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Former president Barack Obama must have been channeling his inner Machiavelli when he once reminded his Republican opponents, who had just suffered several election defeats, that “elections have consequences.” His message, paraphrased at the time, could have come directly from 16th century Medici Florence: “I won; you lost. Deal with it.”

Fortunately, we’re past the physical violence that characterized Renaissance Italy’s political, religious and family disputes. Nonetheless, as we hear occasionally, “politics ain’t beanbag.” It’s not for the faint of heart, especially when the outcomes are consequential.

Obama’s blunt political realism characterizes certain battles at the end of Donald Trump’s first term. Progressive Democrats favor late-term abortions; conservative Republicans favor late-term judicial nominations. It’s all about exercising power.

Between now and January 20, 2021, we can expect the Republicans to prevail when it comes to judicial vacancies. November 3 will determine what happens thereafter.

Whether Trump’s a one-term or two-term president, his judicial appointments will be among his most important and durable legacies. Trump has already appointed more federal judges since 2017 than most other presidents in a comparable time period.

Today, there are 64 federal judicial vacancies and 40 pending nominees. If there’s a lame duck Senate session after November 3, we can expect more Trump nominations and Senate confirmations. After all, as Machiavelli might advise, what’s the point of having power if you don’t exercise it?

No one should be surprised: Trump announced during his 2016 presidential campaign that federal judicial appointments would be a top priority. He made public a list of potential Supreme Court candidates should vacancies arise. Whatever else one thinks about Trump’s presidency, he delivered on those 2016 promises.

By contrast, Joe Biden and Kamala Harris have studiously avoided issues involving potential Supreme Court nominations, other than to say that the current Supreme Court vacancy created by Justice Ginsburg’s death last month should be filled by the next president. Biden repeatedly refuses to answer questions about his possible nominees.

So why won’t Biden match Trump’s approach and release his potential judicial nominees? The answer is that doing so risks alienating one or more of the carefully balanced interest groups (moderates, centrist liberals, and Sanders-Warren progressives) that comprise today’s Democrat coalition.

If Biden were smart, he’d change the discussion immediately by announcing that if a Supreme Court vacancy occurs during a Biden presidency, his first-choice nominee would be Judge Merrick Garland, Barack Obama’s last Supreme Court nominee who was blocked by Senate Majority Leader Mitch McConnell.

Trump’s decision to nominate Judge Amy Coney Barrett to succeed Justice Ruth Bader Ginsburg has ignited bipartisan political posturing. Democrats cite Republican hypocrisy at blocking Judge Garland almost a year before the 2016 presidential election while likely confirming Judge Barrett only days before the 2020 election. Republicans suggest a distinction: in 2016, the White House and Senate were held by opposing political parties; in 2020, the White House and Senate are in the GOP’s hands.

Law students learn about distinctions without differences. What’s really going on here is the exercise of raw political power. Does anyone think for a moment that if the situation were reversed, Senator Chuck Schumer would behave differently? If you’ve got the votes, you use them.

In response, Democrats threaten to pack the Supreme Court if they gain control of the Senate. Trump is not packing the Supreme Court; he’s simply exercising his existing constitutional authority. FDR wanted to pack the Supreme Court with additional justices given his frustration that the existing majority kept overturning many New Deal priorities. FDR’s effort backfired, as will any effort in 2021 to follow his example.

The Supreme Court’s nine philosopher kings interpret the Constitution, but in controversial situations, they also consider public opinion: they, too, are part of a fundamentally political system. While Roe v. Wade is a poorly reasoned Supreme Court precedent, Judge Barrett’s joining the Court is unlikely to change the practical outcome: abortion will remain legal because most Americans want it that way, although late-term, partial-birth abortions may be banned.

Likewise, the Affordable Care Act will also survive in large part due to the principle of severability: Supreme Court decisions often void portions of a statute while keeping the remainder intact. Justices try to do as little surgery as possible in order to defer to Congressional will.

Judge Amy Coney Barrett will be confirmed. Her opponents can thank another Machiavellian, former Senate Majority Leader Harry Reid, who scrapped the Senate filibuster for lower-court judges in 2013.

Charles Kolb served as Deputy Assistant to the President for Domestic Policy from 1990-1992 in the George H.W. Bush White House