(Update) SCOTUS: the defining issue in the 2016 election

Earlier this year I did a post SCOTUS: the defining issue in the 2016 election based upon an essay by election law attorney Rick Hasen, who had written this longread for TPM, which is well worth your time to read. It began:

The future composition of the Supreme Court is the most important civil rights cause of our time. It is more important than racial justice, marriage equality, voting rights, money in politics, abortion rights, gun rights, or managing climate change. It matters more because the ability to move forward in these other civil rights struggles depends first and foremost upon control of the Court. And control for the next generation is about to be up for grabs, likely in the next presidential election, a point many on the right but few on the left seem to have recognized.

SCOTUS

Rick Hasen follows up his earlier essay this week with what may be considered his closing argument. Wake Up Progressives: The 2016 Election is Now All About the Supreme Court and Every Issue You Care About:

Tonight’s debate is going to focus in part on the Supreme Court, and for very good reason.

Barring some bombshell, the 2016 presidential election is over, and Hillary Clinton will beat Donald Trump. But control of the United States Senate is another matter. It is not at all clear who will win control of the Senate, and with Senate control comes the ability to confirm or block a Supreme Court appointment. And with a Supreme Court majority comes control of every important issue liberals and conservatives care about, from voting rights to the environment to abortion rights to gun rights. Let me take each of these points in turn.

Senate control means control of the Supreme Court. Republicans have been blocking the appointment of older, moderate D.C. Circuit Judge Merrick Garland for months, who President Obama nominated to replace Justice Scalia who died in February. They say it is to give the next president a chance to make the appointment, but it is really about preserving conservative control of the Supreme Court which has existed since the 1970s. Indeed, John McCain made waves this week when he suggested that Republicans in the Senate could block Hillary Clinton’s appointment to the Supreme Court for her entire term. (McCain’s office walked the claim back, but it is a pretty clear signal to conservatives to put all their efforts into keeping control of the Senate.) And now you have conservative Michael Stokes Paulson in the National Review that we should move to a Supreme Court of six Justices. No doubt about it: if Clinton becomes president and Republicans control the Senate, there will be a concerted effort to block ANY of her nominations to the Supreme Court.

But what about a Republican filibuster? Even if Democrats take narrow control of the Senate, the current Senate rules provide that it takes 60 affirmative votes to overcome a filibuster of a Supreme Court nominee. Democrats when they last controlled the Senate eliminated this rule for judicial appointees (and executive nominations generally) aside from the Supreme Court. There is no doubt in my mind that whenever Democrats or Republicans will need to kill the filibuster for Supreme Court nominees to get someone through, they will. Forget about comity in the Senate, forget about the question about whether this will ruin the special nature of the Senate. In this polarized time, that debate is over. The parties will do whatever they need to to get their nominees through. And there’s a pro-democracy argument to be made in favor of Democrats nuking the filibuster: the Senate is itself an undemocratic institution, where small states (such as Wyoming) get as much representation as big states (such as California or Texas). Majority rule without the filibuster in the Senate actually promotes democracy, especially because Democratic Senators represent more people than Republican Senators. The argument about the filibuster is essentially over. We are in an era of political hardball, and don’t expect Mitch McConnell to give a Clinton nominee even a hearing, and don’t expect Chuck Schumer to save the filibuster for Supreme Court nominees in the name of the Senate institution.

Multiple Supreme Court appointments in the next few years likely. I still expect if Clinton wins and Democrats retake the Senate, that the Republican Senate under McConnell will confirm Garland in the lame duck session of Congress (unless Obama withdraws the nomination, which I don’t expect). Why would he do this? Garland is older and more moderate than a likely Supreme Court nominee from Clinton. But even if that seat is filled, I expect Justices Ginsburg, Breyer, or both to go within the first two years of a Clinton presidency if there is a Democratic Senate in 2016. In 2018, there’s a very good chance Republicans will retake control of the Senate and block and further Supreme Court nominees. So there is a small window. The Supreme Court has had at least 5 (mostly) conservative Justices since the end of the Warren Court. From the 1970s on, we’ve had conservatives making decisions on the most important factors in American life. And now, all the conservatives on the Court are Republican-appointed and all the liberals are Democratic-appointed. This election may matter for up to a generation for control of the Supreme Court.

The Supreme Court is the most important civil rights issue of our time. I argued last year that “The future composition of the Supreme Court is the most important civil rights cause of our time. It is more important than racial justice, marriage equality, voting rights, money in politics, abortion rights, gun rights, or managing climate change. It matters more because the ability to move forward in these other civil rights struggles depends first and foremost upon control of the Court. And control for the next generation is about to be up for grabs, likely in the next presidential election, a point many on the right but few on the left seem to have recognized.” This is the moment that this all matters. And it all comes down to the Senate.

Arizona can do its part by kicking Arizona’s angry old man, John McCain, to the curb this November.

7 responses to “(Update) SCOTUS: the defining issue in the 2016 election

  1. Frances Perkins

    Sorry, Jim, I don’t agree on Flake. He is worse. He wants to have his cake and eat it too. He wants to sound reasonable, and compromising, but his actions are not that. Actions, and voting are what count, not rhetoric. His actions and voting record are just as obstructive as any of the worst of his caucus. He IS smarter than that, but he is playing to his crazy base for political expediency.

    • Frances,
      You might be right about Flake. Since he is a Mormon, the anti Trump rhetoric might just be a political calculation. In Utah, Evan McMullin is now running ahead of both Trump and Clinton.
      He is extremely conservative in terms of his voting record, although he did support the immigration reform process at one point.
      It’s going to be interesting to see if there are any other Republicans that come out in favor of Garland.

  2. It seems like the even more important issue is – why did we end up at this place in the first place? Why did we end up in an election with two of the most polarizing and unlikable candidates in recent history, if not in American history? Why are obstruction and intransigence at all costs the modus operandi of the far right? Why has the issuance of civil rights to various groups been given to the whims of a nine-member body which is unaccountable to the people and serves for life? And what can be done about it?

    Call me a conspiracy nut or a single-issue candidate if need be, but I think political and voting system reform is imperative to change the incentives that politicians have to put partisan politics and outright stubbornness to even pretend to do their job, and instead get something that resembles compromise and working together for the sake of all Americans.

  3. I have to agree with you…the Supreme Court IS the key issue at this time. It is appalling that is so, but that’s the reality. It is mind boggling that we have allowed the Justices to become more important than the President, the Senators, the Representatives, than anybodyelse, but here we are. If the Justices were truly concerned about the Constitution, they would be concerned about what happened to the separation of powers. Somewhere along the way we turned our Republic over to 8 little emperors and one empress and nothing can be done unless they stamp it with their imprimatur. I am surprised we haven’t gone ahead and clothed them in purple and ermine and prohibited anyone else from using purple ink except for them.

    Sad, and in the long run, unhealthy.

    • For Sure Not Tom

      You know there are three “empresses” on the court, right?

      AZBlueMeanie put a picture of them right there.

      Dude, you gotta’ stop doing this.

      • Yes, I know that, but I forgot. I had a “senior moment”. Trust me, Not Tom, those “moments” are in your future, too. ;o)

  4. It doesn’t take much reading of my comments on this website to know that I am a proud Democrat. My dad was a UAW member and state senator, and I have run for office myself and worked as a party person at various levels.

    So, I hardly ever have much good to say about Republicans, especially the modern version. But I am beginning to have some grudging respect for our very own Jeff Flake. He has been one of only two or three Republican politicians that has been very clear about his antipathy toward Donald Trump. Today he says that it might be time for a Supreme Court vote.

    http://www.politico.com/story/2016/10/jeff-flake-merrick-garland-vote-supreme-court-230109