February 15, 2016


IF THE GOP TAKES THE SENATE... : Watch the Courts (KYLE KONDIK, 8/12/14, American Interest)

From a policy standpoint, it's hard to say if Washington would be dramatically more gridlocked and unproductive with a unified GOP Congress opposing President Obama, if only because Federal policymaking has been at a standstill ever since the GOP took the House in 2010. Comprehensive immigration reform would remain highly unlikely, even if elites on the Republican side would like to get the issue off the table in advance of the 2016 presidential election (and they would, but they can't). Rank-and-file members of the House Republican caucus are not sold on the idea as a policy matter, a view strongly reinforced by party activists. A Republican Senate would add yet another roadblock to action on this issue.

With Obama's veto pen in place, and the impossibility of Republicans winning a veto-proof majority in the House or the Senate, the GOP likely could only nibble at the edges of already-enacted policy, like the Affordable Care Act. Republicans likely would attempt to repeal "Obamacare" if only to force an Obama veto. National Journal's Sam Baker recently suggested that actual changes to the law would likely target provisions that generate revenue to pay for the act, like the law's tax on medical devices, rather than provisions that voters like, such as restoring insurers' ability to refuse coverage to people with pre-existing conditions. As always, it's easier for Congress to give than to take.

It's easy, therefore, to imagine that 2015 and 2016 will be defined more by posturing than by policymaking. [...]

Perhaps more interesting than the pursuit of scandal would be a possible, and an historic, showdown over the Supreme Court. Assuming Republicans could keep their caucus together--a big "if" that greatly depends on the size of a new majority--a Republican-led Senate could potentially reject any and all Obama nominees for Administration positions and judicial appointments. That includes anyone Obama would nominate for a hypothetical Supreme Court vacancy. Given the immense value to both parties of lifetime Supreme Court appointments, it's worth considering the potential for a truly historic and divisive showdown between Obama and the Senate over a Supreme Court nomination.

It's not uncommon for presidential nominations to the Supreme Court to fail for one reason or another: Since 1789, Presidents have submitted 160 Supreme Court nominations to the Senate, including those for Chief Justice (who sometimes is already a member of the court). Of those, 124 were confirmed (seven declined to serve). But even though Supreme Court nominees sometimes withdraw or are rejected, the President, at the time the vacancy occurs or is announced, almost always eventually fills it with a nominee of his choosing.

Almost always: Only twice in the post-Civil War era has a President presented with a Supreme Court vacancy failed to fill it before leaving office.2 The most recent instance was nearly half a century ago, in 1968, when Chief Justice of the United States Earl Warren announced his intention to retire upon the confirmation of his successor. Outgoing President Lyndon B. Johnson nominated Justice Abe Fortas, his longtime friend and confidante whom he had appointed to the court in 1965, to replace Warren as Chief Justice. The Democratic-controlled Senate refused to confirm him, though, and Johnson withdrew his nomination in October 1968, along with the nomination of Homer Thornberry, a Federal appellate judge Johnson had nominated to replace Fortas. Warren stayed on as Chief Justice, and it fell to Johnson's successor, President Richard Nixon, to fill the seat. Nixon picked Warren Burger as Chief Justice.

Prior to that, one has to go back to 1881 to find a court vacancy that was filled not by the sitting President but by his successor. President Rutherford B. Hayes made the controversial nomination of Stanley Matthews in 1881. The nomination came near the end of Hayes's term, so the Senate did not act. New President James A. Garfield renominated Matthews, and he passed through the Senate by a slim 24-23 vote.

Despite the lack of any recent precedent for such a power play, nothing but public pressure and historical norms would stop the GOP from running out the clock until the end of Obama's term on a Supreme Court nomination, potentially preserving the court opening for a Republican President, should one be elected in 2016. 

Posted by at February 15, 2016 11:26 AM