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
Former vice president Dick Cheney and his daughter Liz Cheney appeared on MSNBC's Morning Joe Wednesday morning to promote their new book, Exceptional. The Cheneys spoke about national security, foreign policy issues like the Iran deal, and 2016 politics.
Senate minority leader Harry Reid of Nevada said Monday he is working toward filibustering a disapproval vote on President Obama's nuclear deal with Iran, Politico reports. Arkansas senator Tom Cotton, a Republican who has been a vocal critic of the deal, released a statement blasting the Nevada Democrat's declared effort to block a rejection in the Senate:
Rob Portman of Ohio may have one of the toughest Senate reelection campaigns in the country next year, and the Republican isn't wasting time hitting his likely Democratic opponent, former governor Ted Strickland. The Portman campaign has launched a new set of online ads targeting Strickland's support for the proposed nuclear deal with Iran.
The ads ask readers questions like "Who do you stand with on the Iran deal?" and "Do you agree with Rob Portman that the Iran deal is bad for Ohio and for America?" See the ads below:
Bob Menendez, the Democratic senator from New Jersey and one of the leading voices for tougher sanctions on the Iranian regime, delivered an address Tuesday at Seton Hall University in which he declared he would oppose the nuclear deal with Iran.
A new ad from Veterans Against the Deal features the father of U.S. Army specialist Clay Farr, who was killed by an Iranian bomb in Iraq in 2006. In the 60-second spot, Patrick Farr describes the day he learned of his son's death and expresses his opposition to a deal that will reward the regime that killed him.
Iraq veteran Robert Bartlett appeared with Megyn Kelly of Fox News last night to discuss his opposition to the nuclear deal with Iran. Bartlett was severely wounded in 2005 in Iraq by an Iranian bomb, which also killed or injured several of his friends. Watch the interview below:
A new ad from the group Veterans Against the Deal features retired Army staff sergeant Robert Bartlett, who in 2005 was badly injured while serving in Iraq. The supplier of the bomb that "cut me in half, from the left corner of my temple to through my jaw" was the regime in Iran. In the ad, Bartlett urges Americans to tell their senators to vote against the proposed nuclear deal with Iran.
Rick Santorum is keeping expectations low for his second presidential campaign. Asked if he would need to win the Iowa caucuses to stay in the race, the former senator said it “depends.”
“If I finish third and half a percent behind first, I think I feel pretty good. If I finish third and I’m ten points out, well, that’s a different story,” he told a small group of reporters in a Washington restaurant Monday afternoon.
Senate candidates aren’t as important as they used to be. Republican and Democratic presidential nominees have intruded. The outcome of Senate races in 2016 will be heavily affected, if not determined, by which party’s presidential candidate wins a state. This is especially true in tossup states.
Bernie Sanders is within single digits of Hillary Clinton in a new poll of New Hampshire Democratic primary voters. The survey from CNN and WMUR finds Clinton's support among Granite State Democrats at 43 percent, while Sanders, a Vermont senator, registers 35 percent support. That's the best showing for Sanders since was first included in the CNN/WMUR poll in July 2014, while it is Clinton's worst performance since February 2013.
Vermont senator Bernie Sanders is being attacked in a new ad for not being liberal enough on guns.
"Bernie Sanders is no progressive when it comes to guns," says a voiceover in the 15-second spot, which criticizes the socialist senator's votes against two gun-control bills. The ad also notes the National Rifle Association's support for Sanders. Watch the video below:
Senator Jeff Sessions will release this statement in response to Senate's vote to advance the fast-track trade bill:
“Americans increasingly believe that their country isn’t serving its own citizens. They need look no further than a bipartisan vote of Congress that will transfer congressional power to the Executive Branch and, in turn, to a transnational Pacific Union and the global interests who will help write its rules.
After the Democrats passed Obamacare without a single Republican vote, Republicans generally (and wisely) united around the notion that they shouldn’t pursue partial repeal or “fixes” to Obamacare. Rather than willingly giving Obamacare a newly bipartisan sheen, they publicly committed to repealing it in full. (The only exception to this partial-repeal moratorium was supposed to be