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.