August 29, 2016, BY Matthew Beltz

Bucknell University Professor Scott Meinke, political science

The death of U.S. Supreme Court Justice Antonin Scalia in February created a vacancy on the bench that has yet to be filled. President Barack Obama nominated Merrick Garland, a judge on the District of Columbia Circuit Court of Appeals, to replace Scalia. However, the leaders of the U.S. Senate have said they will take no action on the nomination before the November elections. Professor Scott Meinke, political science, discusses the vacancy and looks ahead to how it might be filled based on election outcomes.

Question: Is this potential year-long vacancy unprecedented?

Answer: Not entirely. At the start of Richard Nixon's first term in 1969, Justice Abe Fortas resigned, and Nixon put forward two consecutive failed nominees. The justice who finally was confirmed, Harry Blackmun, didn't join the court until just over a year after Fortas left.

There was also a different situation involving Fortas when, in 1968, Lyndon Johnson nominated him to replace Chief Justice Earl Warren. Fortas faced strong opposition in the Senate and never got a final floor vote. Nixon ended up appointing the new chief justice, Warren Burger, in 1969. That process took about a year, but there was not an open seat because Warren stuck around until Burger was confirmed.

The key difference in the current case is that the Senate has taken no action at all. In the other instances, difficulties in the Senate for the president's nominee dragged out the process. Taking no action at all doesn't have a modern precedent.

Q: In these examples, what caused the delays in the confirmation process?

A: Partisan differences as well as concerns about qualifications. When Johnson was trying to replace Warren, his Democratic party controlled the Senate, but some Republicans were able to obstruct that process using the filibuster. Nixon was was facing a Democratic Senate and today, it is President Obama facing a Republican-controlled Senate. But there are two bigger issues here.

First, with a Democratic president in office, Justice Antonin Scalia's death created a vacancy in a seat that was appointed by a Republican president. We haven't seen an opportunity for that kind of ideological swap for 25 years. The last two vacancies like this were some of the most intense confirmation battles in the modern period — Ronald Reagan's nomination of Robert Bork in 1987, and George H.W. Bush's nomination of Clarence Thomas in 1991. Replacing Justice Scalia with even a moderately liberal justice would shift the court from what has been a five-justice, conservative-leaning majority, to a five-justice, liberal-leaning majority. So, given the nature and importance of this vacancy, one can see why Republican leaders have chosen this strategy.

Second, what we're seeing at the Supreme Court represents an extension of battles that have been ongoing at the lower federal court level. There has been intense political conflict over nominations to district courts and appeals courts for decades. The last three presidents have faced serious difficulties in getting judges confirmed to lower courts, because presidents' opponents in the Senate have been willing to delay or block nominations because of concerns about ideology or qualifications.

When you look at the data, the rates of confirmation to the lower courts have dropped since the 1980s, and the time that it takes to fill those vacancies has jumped. Given the nature of this vacancy, we're seeing these politics that have been around, but not in the forefront, rise up to the Supreme Court level and therefore get much more attention.

Q: Let's go over some election scenarios and how those might affect the nomination battle. Should Hillary Clinton win, and Democrats win the Senate, what do you think will happen?

A: It's possible Republicans would move to confirm Garland in a lame-duck session. Under those circumstances, he may look like the best nominee the Republicans could get from a Democrat, and he might be better than what they might get from a President Clinton. In this scenario, Republicans also must account for the fact that Democrats might eliminate the filibuster for Supreme Court nominees in 2017 to get around Republican opposition to a new nominee.

Q: What if the Senate narrowly remains in Republican control with a Clinton victory? Won't that leave us in situation similar to the current one?

A: There's a chance they would calculate that they need to take up the Garland nomination, assuming they see indefinite obstruction as not worth the cost, but on the other hand, maybe they think it's worth rolling the dice on further obstruction next year. If the Republicans think they could wait until the new Congress and the new president are in place, and then if they think that they can drag out the confirmation of a Clinton nominee, they could try to take advantage of a different negotiating situation. For instance, if another Supreme Court vacancy were to open up early in Clinton's term, maybe that changes the negotiation, and they think they might be able to get a better outcome.

Q: What do you envision happening if Donald Trump wins and Republicans keep the Senate?

A: There would probably be some Democratic appetite for obstructing a Trump nominee, but it probably depends on the nominee, since a conservative Republican nominee would just restore the pre-2016 status quo, so the stakes would not be quite as high. It would probably be a very objectionable nominee that would get serious Democratic obstruction. We also have to keep in mind that a Democratic filibuster against a Republican nominee that had solid Republican support would probably end in Senate Republicans calling the nuclear option on Supreme Court filibusters, just as Senator Harry Reid did for all non-Supreme Court judicial nominees in 2013. Democrats would carefully calculate whether they wanted to push that, and would have to believe that they were getting some advantage out of that. It's important to note that neither party has a consistent position on the filibuster. It depends on whether they're in the majority or minority.

Q: What if Trump wins but the Democrats take over the Senate?

A: This is the most difficult scenario to predict and also the least likely because if Trump manages to win, then Republicans almost certainly hold the Senate. If earlier cases offer any insight, I think you would expect Trump to choose a moderate Republican nominee who had some chance of earning Democratic support. Even in this polarized era, we have seen some presidents successfully navigate that situation, so that would be my basic expectation.

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