Justice for Voters in the Balance: Transforming the Supreme Court

By Bruce Donnelly

— A decade ago, conservative talk radio host Mark R. Levin wrote Men in Black, warning how the role of the Supreme Court was being politicized to impose liberal progressive policies on America in the courts.

Nine lawyers had arrogated to themselves the power to rewrite the meaning of laws through Supreme Court decisions. A single vote could turn personal political opinions and social ideas into legal precedent without any Constitutional constraint on such power.

Unlike the careful system of checks and balances to avoid tyrannical abuses of power in Congress or the executive branch, a simple majority of five lawyers were becoming dictators for life, with the power to transform American society as they pleased.

Senate confirmation hearings were becoming political dramas over this unelected power to transform America and expand the scope of government.

Instead of defending constitutional rights, the Supreme Court was being used to trample their rights and impose personal opinions. Judicial review was becoming an excuse for judicial activism to impose progressive policies rather than adjudicate disputes.

That was never the original intent of the Supreme Court. It was not a Politburo to rule over the voters with more power than the President and Congress.

The death of Justice Scalia, a very conservative Reagan nominee, has resumed this political fight over the role of the Supreme Court. Justice Scalia was the leading conservative on the Court, and vigorously argued for an “originalist” constitutional constraint on the growing power of the Supreme Court and government.

The vacancy creates a tie vote on key cases this year.

President Obama can nominate whoever he wants, whether his choice is a progressive radical left activist judge or somebody more “mainstream,” as Democrats have insisted Republican presidents must nominate. The Senate, however, can certainly reject his nominee.

For example, the Senate Democrats defiantly rejected the appointment of the “originalist” Robert Bork as well as Daniel Ginsburg before President Reagan finally nominated Justice Kennedy, who became the swing vote on many key 5-4 decisions ever since. Democrats also fought the July 1991 nomination of Clarence Thomas with threats to destroy him politically because of his conservative views. Liberal activists threatened to “bork him,” and then treated him disgracefully.

These partisan fights over the views of nominees are nothing new, but they reflect attempts by Democrats to achieve through the Court what they have not been able to achieve through elections, as in the case of two radical activist appointees by President Obama already.

The fight over the next Supreme Court nominee has been one of the prominent issues of the 2016 election because it draws public attention to the fact that the next President is likely to also nominate two or three more new Justices.

Since the Court is divided 4-4 between liberals and conservatives, despite varying opinions on specific issues, the replacement of Justice Scalia with anything other than a very conservative nominee would transform the balance of the Court for decades.

Given the prior Obama nominees Elena Kagan and Sonia Sotomayor, it seems likely that he will soon nominate somebody who is a progressive activist but has been confirmed previously by the Senate to other positions. That may include judges who were approved when Harry Reid was the Majority Leader, such as during the period when he used the “nuclear option” to block filibusters of nominations so that a simple majority vote prevailed, contrary to past rules.

The nominee will probably be announced prior to the March 15 primary in Illinois. Several potential names have been floated already in the days after the death of Justice Scalia, but that is largely speculation to test the response or jockey for position politically.

Despite the “advise and consent” role of the Senate to hold confirmation hearings and approve or reject any judicial nominees, Republicans have routinely approved even radical Obama nominees in recent years. It has been rare for them to reject a nominee, although some have been stalled from confirmation votes or pushed through as recess appointments or by using the “nuclear option” of a simple majority vote when Harry Reid was still the Majority Leader.

Sonia Sotomayor was confirmed by a 68-31 vote in 2009 to replace David Souter, another liberal Justice, so this was not shifting the balance of the Court. At the time, the Democratic supermajority in the Senate meant that Republicans could not block it, so the confirmation hearings were a foregone conclusion.

Elena Kagan was confirmed 63-37 shortly prior to the 2010 election which reduced their majority. The Senate leadership did not change until after the 2014 election, but there were no other Supreme Court nominees after the Republicans gained enough votes to sustain a filibuster. They blocked some judicial appointments before Harry Reid changed the rules to ignore filibusters. It is unclear whether Mitch McConnell can be trusted to actually block a nominee until after the 2016 election, when he may lose his role as Leader whether he blocks the nominee or not.

If voters want to have a voice in the nomination process, they can apply pressure through their presidential choice.

There are 24 Republican Senators up for election in 2016, and only 10 Democrats. Enough Republican incumbents are at risk of defeat in 2016 that the Democrats believe they can win back the majority.

If the Democrats win control of the Senate in 2016, any Republican president might face a very difficult Senate confirmation fight over any nominees who would change the political balance of the Supreme Court. The Constitutional rights of voters are very much at stake.

Senator Mark Kirk is one of the most vulnerable Republican incumbents up for election in 2016 since his voting record is as liberal as some of the top Democrats in Illinois. He is one of the top targets nationally of the Democrats as they try to win back control of the Senate.

He won by a narrow margin in the 2010 “Tea Party” wave election, even though he had nothing in common with the Tea Party conservatives. It is much easier for a Republican to win in a midterm election such as 2010 than in a presidential year like 2016.

Image credit: Joseph Sohm / Shutterstock.