When Chief Justice John Roberts administers the oath of office to the next president, he will be flanked by three, and almost four, octogenarians: Justices Ruth Bader Ginsburg (83), Antonin Scalia (80), Anthony Kennedy (80), and Stephen Breyer (77). The next president will likely have the opportunity to appoint a replacement for one, two, three, or maybe even four of those justices. These decisions will reshape the Court and how it reads the Constitution for decades to come. Republican presidential candidates will likely pledge to appoint “constitutional conservatives” to the bench—which ought to mean judges who will be constrained by its original meaning. However, GOP presidents have filled 12 out of 18 Supreme Court vacancies over the past half-century, with disappointing results. This track record teaches five important lessons that should guide future nominations.
1. Bruising confirmation battles are worth the political capital for a lifetime appointment
Presidencies last four to eight years. A Supreme Court appointment can last three decades. Long after the names Robert Bork and Douglas Ginsburg faded from the zeitgeist, Anthony Kennedy continues to have an oversized impact on our society. President Reagan initially nominated Bork and then Ginsburg to replace the retiring Justice Lewis Powell in 1987, but after the political process chewed up both nominees, the administration turned to a moderate circuit court judge with a thin public record from Sacramento. Anthony Kennedy was easily confirmed, 97-0. Placating Joe Biden, who chaired the Senate Judiciary Committee, irreparably altered our constitutional order.
President George H. W. Bush made a similar, but even worse choice three years later. Faced with a once-in-a-generation opportunity to replace liberal lion Justice William Brennan and thereby alter the balance of the Court, Bush faltered. Instead of girding for battle and burning the political capital for what would have been a brutal hearing—a preview of what would happen to Clarence Thomas a year later—Bush punted. On the recommendation of Warren Rudman and John Sununu, he quickly selected First Circuit judge David Souter. The “stealth candidate” was easily confirmed by a vote of 90-9. He would become a solid member of the Court’s liberal bloc, retiring six months into the Obama presidency (at the relatively young age of 69), opening his seat for the nomination of Sonia Sotomayor.
In 2005, President George W. Bush initially nominated Harriet Miers to replace the retiring Justice Sandra Day O’Connor. Miers was viewed as an easy appointment, as her selection was supported by both Harry Reid and Chuck Schumer—which should have been a sign that something was amiss. Only after Miers withdrew, in the face of conservative and libertarian opposition, did the president nominate the far more controversial (and better qualified) Samuel Alito. He was confirmed by a 58-42 vote.
Whatever political capital was gained or sought in 1987, 1990, and 2005 by appointing a less-contentious nominee to avoid a bruising political fight is entirely dwarfed by the impact a justice has on our legal order over three decades. The appointment of a justice should be viewed on the same plane as a president’s “signature” legislative achievements. After the enactment of the Affordable Care Act, President Obama’s most enduring political legacy may well be his appointments of Justices Sonia Sotomayor and Elena Kagan. Obamacare can still be repealed. These appointments are for life.
But what if a contentious nomination fails? Try again. For better or worse, the Senate can mount only so much resistance. The inconvenience of one or more terms at the Supreme Court with fewer than nine justices—even through an intervening midterm election—pales in comparison with the repercussions of making a bad selection. It’s worth the fight, and worth the wait. And this fight may become much easier. Traditionally, presidents had to ensure their judicial nominees would meet a 60-vote threshold to overcome a filibuster. However, in 2013, Senator Harry Reid triggered the so-called nuclear option, which eliminated the filibuster for the appointment of lower court judges, but preserved it for the Supreme Court. It is delusional to imagine that the Democrats will stick with this limit if they retake the Senate and have the opportunity to confirm the next justice. Senate Republicans are fools if they unilaterally preserve the filibuster only for justices nominated by Republican candidates. Republican candidates need to make their views on this clear.
2. Paper trails are an asset, not a disqualification