September 26, 2020


The reason Supreme Court vacancies are getting so heated is because Congress can't get anything done, according to one legal expert (Tyler Sonnemaker, 9/26/20, Business Insider)

Over the years, Republicans and Democrats have both claimed to have precedent and political norms on their side -- only to reverse their positions when the circumstances around a vacancy flip.

"Politics has been part of the nomination and confirmation process from the very beginning," Ilya Shapiro, a constitutional law scholar at the Cato Institute, a libertarian think tank, told Business Insider.

"George Washington had a nominee rejected. About half of our presidents have trouble filling seats for one reason or another," Shapiro said.

But in recent decades, there have been more heated fights over nominees such as: Clarence Thomas, who Anita Hill had accused of sexual harassment; Abe Fortas, whose opponents alleged cronyism on the part of President Lyndon B. Johnson, who nominated him, also during an election year; and Robert Bork, whose conservative views on issues like civil rights and gender equality prompted liberal backlash that ultimately tanked his nomination.

Tom Goldstein, editor of the popular site SCOTUSblog, told NPR in 2012 that things really escalated after Bork, saying it "legitimized scorched-earth ideological wars over nominations at the Supreme Court, and to this day both sides remain completely convinced they were right."

Shapiro said there are two related factors that help explain why vacancy battles today are so incendiary: the Supreme Court and executive branch becoming more powerful -- and therefore more politically important -- and increasingly polarized political parties.

"The centralization of power in Washington and within the federal government is skewing the power towards the executive branch and administrative agencies as Congress doesn't resolve political differences or culture clashes or policy views," he said. Instead, Congress "passes broad legislation that ultimately agencies have to implement, and then they get sued, and that gets thrown to the court."

Indeed, as both Trump and Obama have made greater use of unilateral executive actions in the face of gridlock or partisan opposition in Congress, there has been a growing trend of attorneys general banding together to sue federal agencies.

With a reliable majority on hand to keep the other two branches within the Constitutional guardrails there's no longer any excuse for conservatives to vote for Donald.  On the other hand, there's strong motivation for Democrats to restore republican norms within those branches, particularly restoring the power of Congress by reining in the administrative state, which just transfers power from the Legislative to the Executive.  

Posted by at September 26, 2020 9:51 AM