With Scalia’s Death, Cracks in U.S. Constitutional Structure are Showing


by Ryan Cooper

Right now the political class is speculating about whether or not Senate Republicans will allow President Obama to place another justice on the Supreme Court. But look out slightly further: Suppose a Democrat wins the presidency, but Republicans manage to hang on to the Senate. Would they agree to confirm any nominee of President Sanders or Clinton? Given their past history of extremist procedural obstruction, I’d say chances are pretty slim.

That pegs the earliest date at which the Supreme Court justice might be confirmed to after the 2018 elections. But wait, Republicans are typically favored in midterm elections, and the 2018 map is strong for them. If Democrats can’t do it in 2016, then 2020 is likely the earliest they could retake the Senate. In January 2021, assuming they haven’t retired or died, Justice Stephen Breyer will be 83, Justice Anthony Kennedy will be 84, and Justice Ruth Bader Ginsberg will be 87.

It’s a grim thought, but glancing over some actuarial tables I’d guess at least one (and probably more than one) of the above justices will no longer be on the court by that time. With Antonin Scalia dead, the remaining eight justices would be evenly split between liberals and conservatives — but of the three oldest listed above, two are liberals and only one conservative. With the Supreme Court little more than a venue for partisan combat, the course of the American state over the next presidential term could very well turn on which of several octogenarians manages to cling to life the longest.

The cracks in the American constitutional order are showing.

As Josh Marshall points out, the last time there was a vacancy on the court that lasted an entire year was 170 years ago. This is because, as liberals were quick to point out, the Constitution says that the president is supposed to appoint people to the Supreme Court, with the Senate’s “advice and consent.”

And that is very true! For much of American history, the Senate has granted the president a good bit of deference. So long as he put up someone who was decently qualified, he’d get his choice of nominee (with a few exceptions). That worked well for making sure that somebody at least was on the bench making arguments reverse-engineered to support a political conclusion — I mean, divining the original intent of the Founding Fathers.

The structural problems with this 17th-century mechanism are threefold. First, the rate at which Supreme Court justices die or resign is totally arbitrary — in fact, the United States is the only democracy on earth that grants life tenure to justices.

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SOURCE: The Week