A guide for GOP candidates on how to fill Court vacancies Sep 14, 2015, Vol. 21, No. 01 • By JOSH BLACKMAN and RANDY E. BARNETT
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
The justice who stands aloneJul 20, 2015, Vol. 20, No. 42 • By DAN MCLAUGHLIN
For political observers, the story of the Supreme Court’s recently concluded term was the clash of two great colliding forces. On one side stood the Court’s always-unified liberal bloc, fortified by the apostasies of Republican-appointed Justice Anthony Kennedy and sometimes Chief Justice John Roberts, most prominently in cases involving same-sex marriage and Obamacare. On the other side stood Justice Antonin Scalia, a lion in winter, caustic and witty in his dissents.
Hosted by Michael Graham.3:50 PM, Jun 26, 2014 • By TWS PODCAST
The WEEKLY STANDARD podcast with frequent contributor Adam White on today's Supreme Court rulings.
Nov 4, 2013, Vol. 19, No. 08 • By TERRY EASTLAND
Among the first cases heard by the Supreme Court in its new term is one from Michigan. The state stands accused of violating the Constitution’s equal protection guarantee by requiring equal treatment in public-university admissions decisions. Michigan has committed no such violation. Yet to judge by the oral argument in Schuette v. Coalition to Defend Affirmative Action, the Court, surprisingly, is closely divided. A decision against Michigan would be a setback for equal protection.
Hosted by Michael Graham.6:00 AM, Jul 7, 2013 • By TWS PODCAST
WEEKLY STANDARD executive editor Terry Eastland reviews the Supreme Court's decisions in Fisher v. University of Texas, United States v. Windsor, and Hollingsworth v. Perry.
9:32 AM, Jun 28, 2013 • By DANIEL HALPER
President Obama stopped by the press cabin on Air Force One, as the presidential plane made its way to South Africa. While there, the press had a chance to ask the president about major issues concerning Americans: the scandals, the controversial Supreme Court decisions, immigration, and many others.
Instead, the press asked about Obama's Africa legacy (or lack thereof), China's relationship with Africa, the commitment of U.S. companies to Africa, and whether he'll visit the ailing Nelson Mandela.
Here are the questions asked by the press to the commander in chief:
A dispute among conservatives over the administrative state. Jun 17, 2013, Vol. 18, No. 38 • By TERRY EASTLAND
Last month, in City of Arlington, Texas v. Federal Communications Commission, the Supreme Court’s five judicial conservatives divided on a question concerning the relationship between federal courts and federal regulators. Justice Scalia wrote the decision for a majority that included Justice Thomas, and Chief Justice Roberts wrote the only dissent in the case, which was joined by Justices Alito and Kennedy.
With Fisher v. University of Texas, the High Court can finally put an end to racial preferences in university admissionsOct 1, 2012, Vol. 18, No. 03 • By CARL COHEN
Abigail Fisher, a white applicant to the University of Texas, contends that the university, in giving preference to minority applicants while rejecting her, discriminated against her unlawfully because of her color. The Supreme Court will hear the case this fall; it is likely that Fisher will prevail. The Texas 10 percent law and the special circumstances of that university present complications, of course, but the makeup of the Supreme Court today differs importantly from that of the Court that decided Grutter v.
Advocates of small government shouldn’t look to the Supreme Court for help.
Jul 16, 2012, Vol. 17, No. 41 • By ROBERT F. NAGEL
As is abundantly demonstrated by the commentary on the June 28 decision upholding Obamacare, the drama of constitutional decision-making by the Supreme Court is irresistible. Such a significant issue decided, in effect, by one man! And that man, Chief Justice John Roberts—is he a lawless sellout to political pressure or a brilliant legal statesman? Is the fundamental constitutional principle of limited national powers gone forever? Or has Roberts laid down a subtle doctrinal roadmap that will eventually allow the Court to save our republic?
7:20 PM, Mar 26, 2012 • By ADAM J. WHITE
The solicitor general had an interesting morning. He argued before the Supreme Court's nine justices that Obamacare's individual mandate isn't a "tax"—even though he'll argue tomorrow that the mandate is a "tax." And then the government's top litigator invoked the possibility of incompetent government litigators as a reason to reject an argument raised by the plaintiffs
Welcome to the Supreme Court's review of Obamacare. One day down, two more to go.