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

I have posted several times that the U.S. Supreme Court is the defining issue in the 2016 election. SCOTUS: the defining issue in the 2016 election.

This has now been refined to a fine point with the passing of Justice Antonin Scalia, the arch-conservative icon and leader of the conservative activist wing of the court. Antonin Scalia, Justice on the Supreme Court, Dies at 79.

Of course the Septuagenarian Ninja Turtle, Senate Majority Leader Mitch McConnell, immediately made clear that the Senate GOP leadership will resist any nominee to succeed Justice Scalia. He counseled waiting until there is a new president in office.

There is no precedent for such partisan political obstruction. If this “blockade” of a nominee were to stand, a justice to replace Scalia likely could not occur for another year, well into the court’s next 2016-2017 term. Such partisan obstruction of the business of the court is unprecedented.

Amy Howe at SCOTUSblog looks at Supreme Court vacancies in presidential election years:

In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year.  The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending nomination.  In that period, there were several nominations and confirmations of Justices during presidential election years.

The first nomination during an election year in the twentieth century came on March 13, 1912, when  President William Taft (a Republican) nominated Mahlon Pitney to succeed John Marshall Harlan, who died on October 14, 1911.  The Republican-controlled Senate confirmed Pitney on March 18, 1912, by a vote of fifty to twenty-six.

President Woodrow Wilson (a Democrat) made two nominations during 1916.  On January 28, 1916, Wilson nominated Louis Brandeis to replace Joseph Lamar Rucker, who died on January 2, 1916; the Democratic-controlled Senate confirmed Brandeis on June 1, 1916, by a vote of forty-seven to twenty-two.  Charles Evans Hughes resigned from the Court on June 10, 1916 to run (unsuccessfully) for president as a Republican.  On July 14, 1916, Wilson nominated John Clarke to replace him; Clark was confirmed unanimously ten days later.

On February 15, 1932, President Herbert Hoover (a Republican) nominated Benjamin Cardozo to succeed Oliver Wendell Holmes, who retired on January 12, 1932.  A Republican-controlled Senate confirmed Cardozo by a unanimous voice vote on February 24, 1932.

On January 4, 1940, President Franklin Roosevelt (a Democrat) nominated Frank Murphy to replace Pierce Butler, who died on November 16, 1939; Murphy was confirmed by a heavily Democratic Senate on January 16, 1940, by a voice vote.

On November 30, 1987, President Ronald Reagan (a Republican) nominated Justice Anthony Kennedy to fill the vacancy created by the retirement of Louis Powell.  A Democratic-controlled Senate confirmed Kennedy (who followed Robert Bork and Douglas Ginsburg as nominees for that slot) on February 3, 1988, by a vote of ninety-seven to zero.

In two instances in the twentieth century, presidents were not able to nominate and confirm a successor during an election year.  But neither reflects a practice of leaving a seat open on the Supreme Court until after the election.

On September 7, 1956, Sherman Minton announced his intent to retire in a letter to President Dwight D. Eisenhower, and he served until October 15, 1956.  With the Senate already adjourned, Eisenhower made a recess appointment of William J. Brennan to the Court shortly thereafter; Brennan was formally nominated to the Court and confirmed in 1957.  The fact that Eisenhower put Brennan on the Court is inconsistent with any tradition of leaving a seat vacant.

And in 1968, President Lyndon B. Johnson nominated Abe Fortas, who was already sitting as an Associate Justice, to succeed Chief Justice Earl Warren, but Republicans filibustered the Fortas nomination – principally in reaction to the Warren Court’s liberalism and ethical questions about Fortas, although objections were certainly also made that it was inappropriate to fill the seat in an election year.  That filibuster prompted Homer Thornberry, whom Johnson nominated to succeed Fortas as an Associate Justice, to withdraw his name from consideration in October 1968, because there was no vacancy to fill. Moreover, the failure to confirm Fortas as the Chief Justice did not leave the Court short a Justice, because Chief Justice Earl Warren remained on the bench.

UPDATE: From 1796 to 1988—at least 14 Justices have been confirmed during election years.

So only in the highly politicized case of Abe Fortas, the origination of the “judicial wars” in Congress over Supreme Court nominees in the years since,was a presidential nominee not approved by Congress in an election year.

Senate obstruction of the court’s business may effect a number of cases currently pending before the court. Tom Goldstein at SCOTUS blog writes, What happens to this Term’s close cases?:

The passing of Justice Scalia of course affects the cases now before the Court.  Votes that the Justice cast in cases that have not been publicly decided are void.  Of course, if Justice Scalia’s vote was not necessary to the outcome – for example, if he was in the dissent or if the majority included more than five Justices – then the case will still be decided, only by an eight-member Court.

If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four.  In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case.  Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is “affirmed by an equally divided Court.”

The most immediate and important implications involve that union case.  A conservative ruling in that case is now unlikely to issue.  Other significant cases in which the Court may now be equally divided include Evenwel v. Abbott (on the meaning of the “one person, one vote” guarantee), the cases challenging the accommodation for religious organizations under the Affordable Care Act’s contraceptive mandate, and the challenge to the Obama administration’s immigration policy.

The Court is also of course hearing a significant abortion case, involving multiple restrictions adopted by Texas.  In my estimation, the Court was likely to strike those provisions down.  If so, the Court would still rule – deciding the case with eight Justices.

Conversely, the Court was likely to limit affirmative action in public higher education in the Fisher case.  But because only three of the liberal Justices are participating (Justice Kagan is recused), conservatives would retain a narrow majority.

There is also recent precedent for the Court to attempt to avoid issuing a number of equally divided rulings.  In Chief Justice Roberts’s first Term, the Court in similar circumstances decided a number of significant cases by instead issuing relatively unimportant, often procedural decisions.  It is unclear if the Justices will take the same approach in any of this Term’s major, closely divided cases.

President Obama does have the constitutional authority to appoint a temporary justice — President Eisenhower made a recess appointment of William J. Brennan to the Court in 1956.

Lyle Denniston of SCOTUSblog writes, Is a recess appointment to the Court an option?:

The Constitution not only assigns to the president the task of making nominations to the Supreme Court, setting off Senate review that may or may not result in approval, but it also gives the Chief Executive the opportunity to fill a vacancy on the Court temporarily, bypassing the Senate initially, if a nominee languishes in the Senate without final action.

Within a few hours after the death of Justice Antonin Scalia, it became abundantly clear that, first, President Obama will choose a possible successor and try to get the Senate to go along, and, second, the GOP leadership of the Senate say they will try to block any such nominee from final approval.

If that does result in an impasse, President Obama may ponder the possibility of putting on the Court a new Justice of his choosing, to serve temporarily.  The problem, though, is that less than two years ago, the Supreme Court severely narrowed the flexibility of such temporary appointment power, and strengthened the Senate’s capacity to frustrate such a presidential maneuver.

* * *

The presidential authority at issue in this possible scenario exists, according to Article II, when the Senate has gone into recess and the vacancy a president seeks to fill remains.  Such an appointment requires no action at all by the Senate, but the appointee can only serve until the end of the following Senate session.  The president (if still in office) can then try again during a new Senate session, by making a new nomination, and that must be reviewed by the Senate.

The Supreme Court had never clarified that power until its decision in June 2014 in National Labor Relations Board v. Noel Canning.

The decision was something of a compromise.  The Court expanded the concept of when the Senate would be in recess so that the president could make a temporary appointment, but it also gave the Senate more control over when it does recess and how long the recesses last.  The gesture toward the Senate’s choices was probably the more important result.

Here, specifically, is what the Court decided:

First, on the president’s side, the Court ruled that the recess appointment power applies when the Senate leaves town for a break in the middle of an annual sitting, or a break at the end of each annual session.

Second, also on the president’s side, the decision declared that the president during a recess can fill a vacancy even if the opening occurred well before the recess began.

Third, on the Senate’s side, the ruling made clear that it has to last more than three days, without saying how much more time must pass without the Senate out of town and doing nothing.

Fourth, strongly on the Senate’s side, the decision left it largely up to the Senate to decide when it does take a recess, allowing it to avoid the formality of a recess by taking some legislative action, however minor or inconsequential and however few senators actually take part in some action.

Suppose President Obama goes ahead with a nomination to the open seat on the Court, and suppose that the Republican-controlled Senate chooses not to allow that nominee.  The GOP has enough seats in the Senate to control that scenario.

Suppose, then, that the Senate goes into recess to allow its members who are running for reelection to spend some more time campaigning back home.

Could President Obama make a nominee during that recess?  Only if the Senate is taking a recess lasting longer than three days, and does not come in from time to time during that recess to take some minimal legislative action.  Both of those circumstances would be entirely within the Senate’s authority.

In that circumstance, a recess appointment to the Court would not be within the terms of the Constitution, as spelled out in Article II.

The same situation would likely apply when this year’s Senate session comes to an end, and the senators take a recess before the next Congress assembles.

The bottom line is that, if President Obama is to successfully name a new Supreme Court Justice, he will have to run the gauntlet of the Republican-controlled Senate, and prevail there.  The only real chance of that: if he picks a nominee so universally admired that it would be too embarrassing for the Senate not to respond.

Riiight. President Obama could nominate Jesus H. Christ himself and this partisan GOP Senate would find reasons to object that he is a squishy soft socialist liberal. I don’t see this happening.

The next series of judicial nominees to the U.S. Supreme Court will affect the direction of this country for the next generation or more. This is why we need to elect a Democratic president and to take control of the U.S. Senate. Now get out there and go to work!