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Republicans Say They Want to Nominate Another Scalia. But They Don’t Mean It

The epic battle to fill the Supreme Court seat held by Justice Scalia has progressives fantasizing about the first liberal high court majority in more than 40 years. In fact, it’s a moment of peril for progressives and issues they care about.

March 17, 2016

Cross-posted at The Amer­ican Prospect

The epic battle to fill the Supreme Court seat held by Justice Antonin Scalia has progress­ives fantas­iz­ing about the first liberal high court major­ity in more than 40 years. In fact, it’s a moment of great peril for progress­ives and the issues they care about – greater than most people acknow­ledge.

Every­one knows the stakes are high. On a range of closely contested issues, from affirm­at­ive action to voting rights to repro­duct­ive free­dom, the Court’s conser­vat­ives have lost their decis­ive fifth vote. Senate Repub­lic­ans wasted no time in announ­cing they would not consider any nominee put forth by Pres­id­ent Obama. Their gambit is obvi­ous: run out the clock and hope a Repub­lican pres­id­ent can fill the vacancy with another conser­vat­ive.

That has not stopped the pres­id­ent from nomin­at­ing a highly qual­i­fied candid­ate. Merrick Garland is a highly respec­ted, moder­ate judge who enjoyed broad Repub­lican support when he was confirmed to a seat of the federal appeals court for the District of Columbia, considered the second highest court in the land. If Senate Repub­lic­ans make good on their block­ade, it could fall to Obama’s successor to shape the Court for a gener­a­tion.

But while some comment­at­ors believe Hillary Clin­ton or Bernie Sanders have a clear path to the White House – and a progress­ive will ulti­mately fill the seat – as we’ve seen in this topsy-turvy elec­tion cycle, anything can happen.

For decades, Repub­lican pres­id­en­tial candid­ates have routinely prom­ised to nomin­ate justices “in the mold of Antonin Scalia.” In fact, given the oppor­tun­ity, the next Scalia could be far worse.

Over his three decades on the Court, Scalia was an atten­tion-grabbing, polar­iz­ing figure. But that should not be confused with actual influ­ence. He was a color­ful public intel­lec­tual and a reli­ably conser­vat­ive vote, to be sure. But when it came to cobbling together major­it­ies on the nine-member Court, he showed himself to be a purist – happier writ­ing caustic dissents than comprom­ising. He rarely brought the other justices over to his point of view. And his crotchety side – evid­enced by insens­it­ive comments toward LGBT people, African Amer­ic­ans, and others – under­mined his cred­ib­il­ity.

Conser­vat­ives would­n’t settle for another Scalia. As it happens, a Pres­id­ent Trump or Pres­id­ent Cruz would have the oppor­tun­ity to make a far more radical and effect­ive pick – and would­n’t have to look very far to find one. There is a whole farm team of deeply conser­vat­ive judges, appoin­ted by George W. Bush, wait­ing for their shot at the big leagues.

After the contested pres­id­en­tial elec­tion of 2000, when five Repub­lican Supreme Court appointees halted the Flor­ida recount to hand the White House to the Repub­lican candid­ate, the Bush admin­is­tra­tion made judi­cial nomin­a­tions a top prior­ity. It partnered with the Feder­al­ist Soci­ety, which had come into its own as a soph­ist­ic­ated network of conser­vat­ive legal schol­ars, prac­ti­tion­ers, and students with a member­ship in the thou­sands. Prom­ising young law students, who joined Soci­ety chapters in the 1980s, spent their form­at­ive years in the bubble of a conser­vat­ive legal move­ment that ment­ored and moved them into posi­tions of influ­ence. The Soci­ety honed a model designed to oper­ate, in the words of legal affairs reporter David Margol­ick, as “a sort of judi­cial hatch­ery, spawn­ing and cultiv­at­ing reli­ably conser­vat­ive judges and their reli­ably conser­vat­ive law clerks.”

Bush moved quickly to make a number of contro­ver­sial nomin­a­tions, pleas­ing a base that cares deeply about the courts. When Demo­cratic senat­ors fili­bustered a hand­ful of the most extreme nomin­ees, the Bush admin­is­tra­tion orches­trated a show­down. The clash came to a head in the “nuclear option” battle of 2005, when then-Major­ity Leader Bill Frist threatened to elim­in­ate the fili­buster. In the bipar­tisan “Gang of 14 Comprom­ise,” the judi­cial fili­buster won a brief reprieve. (The Demo­crats finally elim­in­ated it, for certain nomin­ees, in 2013 in response to Repub­lican stalling tactics.) And three nomin­ees strenu­ously opposed by the Demo­crats were given a path to confirm­a­tion.

Donald Trump has already iden­ti­fied one of these three espe­cially contro­ver­sial appointees, appeals court judge William Pryor, as an ideal Supreme Court pick.

Pryor first made a name for himself as Alabama’s attor­ney general, the nation’s young­est. He was a zeal­ous crusader for states’ rights, most notably through a campaign to roll back the post-New Deal legal consensus that gives Congress the power to regu­late the economy and promote social justice. After Bush nomin­ated him, a reporter described Pryor as “a B-52 candid­ate” – not the more conven­tional stealth candid­ate – “who has spent his career flying high, carpet-bomb­ing the land­scape with conser­vat­ive views on feder­al­ism, abor­tion, church-state separ­a­tion and a host of crime and punish­ment issues.” Since join­ing the federal bench, Pryor has been as conser­vat­ive as his detract­ors feared, uphold­ing voter ID laws, approv­ing of sectarian pray­ers at county commis­sion meet­ings, and support­ing reli­gious excep­tions to the Afford­able Care Act’s contra­cep­tion mandate.

Trump has also floated federal appeals judge Diane Sykes, a Bush appointee who staked out a place on the Wiscon­sin Supreme Court’s far right flank. While not fili­bustered, her nomin­a­tion engendered contro­versy. On the federal bench, she has stood out for her conser­vat­ive juris­pru­dence. Her rulings on Obama­care’s birth control mandate and reli­gious free­dom have been hailed by the reli­gious right. And she delighted the gun lobby with her vote against Chica­go’s ban on gun firing ranges.

In naming these two prospects, Trump is send­ing a signal to a GOP base that cares deeply about the courts. There is little reason to think he won’t deliver. If he does­n’t choose Pryor or Sykes, he can look to other Bush appeals judges, includ­ing Jeffrey Sutton who, in the remark­able run of federal court cases expand­ing marriage equal­ity after the Supreme Court’s Wind­sor decision, wrote the only appeals court opin­ion uphold­ing a state marriage ban. The Supreme Court over­ruled him in last year’s land­mark marriage equal­ity case, Oberge­fell v. Hodges. Or Janice Rogers Brown, who called the post-New Deal regu­lat­ory state “the triumph of our social­ist revolu­tion.”

Does Trump have a fully developed theory of consti­tu­tional inter­pret­a­tion? Prob­ably not. But as the presumptive GOP stand­ard bearer, look­ing to shore up crucial constitu­en­cies within his party, he will do what previ­ous candid­ates have done: prom­ise the base that the judi­ciary will stay in conser­vat­ive hands. He may very well have the oppor­tun­ity to make more than one appoint­ment. On Inaug­ur­a­tion Day 2017, three of the remain­ing eight justices will be 78 years or older.                                                                                                                  

So – in a less rosy scen­ario for progress­ives – the next four years may resemble Richard Nixon’s first term, which locked in four decades of conser­vat­ive domin­a­tion of the Supreme Court.

Then, as now, a Demo­cratic pres­id­ent nomin­ated a new justice in the last year of his term when Chief Justice Earl Warren announced his inten­tion to retire. Then, as now, the Senate balked. Once elec­ted, Nixon not only had the oppor­tun­ity to fill the held over vacancy, appoint­ing a new chief justice in 1969, he went on to appoint three other justices that term, moving the Court on a right­ward traject­ory that has contin­ued to the present day.

John F. Kowal is Vice Pres­id­ent for Programs at the Bren­nan Center for Justice at NYU School of Law. The views expressed are the author’s own and not neces­sar­ily those of the Center.