With the death last February of Justice Antonin Scalia, the eight-member court already tilts left on abortion rights, affirmative action and same-sex marriage. But on criminal justice issues and gun rights, the justices will remain deeply divided until the Senate confirms a replacement for Scalia.
President Barack Obama last March nominated federal appeals court Judge Merrick Garland to replace Scalia, a conservative icon. But Senate Republicans have refused to schedule a confirmation vote, saying the next president should fill the vacancy.
‘Lasting repercussions’
“The court is really important in this election, but mainly because there is a potential for getting three seats and because they serve so long, it will have long lasting repercussions,” said Susan Low Bloch, a professor of law at Georgetown University and former law clerk to the late Justice Thurgood Marshall.
Christopher Walker, a professor of law at Ohio State University, said, “There is a lot at stake” in the presidential election, adding “even a Justice Garland would change the balance of the court.”
Both sides are vowing intense fights. At this summer’s Democratic National Convention in Philadelphia, Dawn Laguens, executive vice president of Planned Parenthood, warned Ohio delegates the next president will “shape the court not just for one presidential term, but for 40 years.”
Abortion rights’ opponents are equally as alarmed, with Michael Gonidakis, president of the Ohio Right to Life, saying “this election is truly all about the Supreme Court and which party selects those judges.”
Abortion rights are but one of an array of issues that will wind their way to the court. The justices in the next few years almost certainly will have to consider cases on the rights of gun owners, separation of church and state, and the power of the president to sidestep Congress on executive orders.
Some legal scholars dismiss the fears as too ominous. Richard Primus, professor of law at the University of Michigan, said that “if you look at the reporting in election years going back half-a-dozen cycles, you find every single time people say the future of Supreme Court is at stake in this election.”
Instead, Primus said the outcome of Senate elections may have as much impact as the next president. Even if Clinton wins and Democrats seize control of the Senate, just 41 Republicans can use a filibuster to block any of her nominees.
“For the past few months we have had an unprecedented situation where the Senate has refused to act on a nominee,” Primus said. “Many people operate under the assumption that after election the Senate will act, but I don’t know why we should assume that.”
Aging court
Among current justices, Ruth Bader Ginsburg is 83, Anthony Kennedy is 80, and Stephen Breyer is 78. Although none has even hinted at retirement, they are considerably older than the conservative bloc headed by Chief Justice John Roberts, 61, and Justices Clarence Thomas, 68, and Samuel Alito, 66.
American presidents often have been flabbergasted that their judicial nominees rule differently than expected.
President Dwight Eisenhower had no idea he was ushering in the nation’s most liberal court when he tapped California Gov. Earl Warren to be chief justice and William Brennan as an associate justice, although legend has it Eisenhower grumbled he “made two mistakes” as president “and they are both sitting on the Supreme Court.”
But in the past two decades, White House advisers have meticulously screened ideological views of nominees, opting for federal appeals’ court judges who had lengthy records of their rulings. Seven current justices served on the federal appeals bench while Garland is a member of the U.S. Court of Appeals for the District of Columbia.
As a result, today’s confirmation battles are unruly brawls compared to the more genteel disputes of the 1950s and 1960s. The rare exception was a Senate Republican filibuster in 1968 to prevent Justice Abe Fortas from becoming chief justice, followed by the obligatory payback when Senate Democrats in 1969 rejected President Richard Nixon’s Supreme Court nomination of Judge Clement Haynsworth.
“The tit-for-tat of 1968 looks like the Marquess of Queensbury rules compared to the dysfunction now,” said Primus.
Opposing views
Trump is pledging to nominate staunch conservatives, telling radio host Mike Gallagher in June that “even if you dislike Donald Trump, I’m going to put great conservative justices on.”
Last May, Trump went so far as to unveil a list of potential nominees such as federal appeals court judges Thomas Hardiman of Pennsylvania; William H. Pryor, Jr. of Alabama, and Diane Sykes of Wisconsin.
Clinton has made no secret of the kind of justices she would nominate, suggesting any nominee would have to have been a supporter of abortion rights and oppose discrimination based on sexual orientation.
She likely would consider Garland; federal appeals court judges Sri Srinivasan of Washington, D.C.; Jacqueline Nguyen of California, and Jane Kelly of St. Louis.
“It still looks pretty unlikely the Democrats will capture the Senate,” Walker said, but if Democrats did, he said “a President Clinton would come in with a pretty strong mandate,” predicting “Clinton would be quite aggressive in shaping her legacy.”
Yet there are tantalizing hints that if Clinton wins, Senate Republicans will confirm Garland in a December session, with Bloch saying “she’s not going to name someone more conservative than Garland, so I don’t know why anyone would wait to see what she would do.”
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