by Cady Voge
When Supreme Court Justice Antonin Scalia died suddenly in February 2016, the highest court in the country was left with four conservative judges and four liberal judges. A deadlock. The sitting president is responsible, as outlined in the constitution, for nominating the replacement for each justice who retires, resigns, or as in this case, dies during their presidential term. The president traditionally selects a judge with a ruling track record in line with their party’s politics, and the Senate must vote by a simple majority (51/100) to approve the nominee.
Immediately after the announcement of Scalia’s death, the Republican-controlled Senate made it clear that they would not approve any justice that President Barack Obama nominated to the Supreme Court of the United States (SCOTUS). What was their plan? Republican leadership decided to hedge their bets that the then undecided candidate from their party would win the White House this November, they would maintain their majority in the Senate and they could approve a conservative Justice under a new president in January 2017.
A lot has changed since February. Perhaps most importantly, Donald Trump had not yet been elected as the Republican candidate, and equally as pertinent, it was not yet as clear that the Democrats had a chance at winning back the majority in the Senate, which they lost in the 2014 midterm elections. All of this means that depending on what happens on Election Day, there are a few different scenarios in which the Republicans Senators may change their plan entirely before January 2017 when the new congress and president are both sworn in.
Scenario One – The Current Senate Approves Barack Obama’s Nomination
In March 2016, the president nominated judicial moderate, Merrick Garland, current chief judge of the United States Court of Appeals for the District of Columbia. This wasn’t the first time that Judge Merrick was considered for the position. During the first two years of his presidency, when Democrats still controlled the Senate, President Obama appointed two of the current SCOTUS justices – liberal judges Sonia Sotomayor and Elena Kagan, the third and fourth women justices to hold the position. In 2010, at the time of these first two nominations, Merrick Garland was on Obama’s short list of candidates, at which point Republican Senator Orrin Hatch of Utah told the president he would support the nomination and help garner bipartisan support for Garland amongst his Republican colleagues. Six years on, the same Republican Senators, now in the majority, sing a different tune.
However, if Hillary Clinton wins and the Democrats win back the majority in the Senate, the current senate is likely to quickly approve Obama’s centrist nominee – called a “consensus” pick by Hatch back in 2010 — before they lose their majority voting power. Why the rush? If Clinton wins and her party controls the Senate come 2017, it would be completely within her rights to nominate a different and more liberal judge instead of sticking with Obama’s nomination for Garland.
Scenario Two – The Senate Blocks a New Pick for the Bench Indefinitely
If Clinton wins the White House but Republicans maintain control of the Senate, Republicans are beginning to indicate that they would dig in their heels and try to postpone approving any nominations throughout Clinton’s entire presidency. When asked about the topic at a campaign rally in Texas, Republican Senator and member of the Senate Judiciary Committee, Ted Cruz said “There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”
The degree of support for this unusual plan from Republican Senators is still unknown and will only be considered seriously if Clinton wins on 8 November and they keep their Senate majority. Republican Senator Jeff Flake (Arizona), concerned this plan might be too risky or simply more willing to compromise, suggests that in this scenario they should quickly approve Garland before the presidential turnover in January, or they risk being cornered into approving a Clinton nominee. Many argue that the blockade on Obama’s nominee violates the constitution, pushing for four more years could be difficult to pull off.
Scenario Three – The Senate Does Nothing and Approves a Trump Nominee Next Year
If the Trump wins and the Senate remains majority Republicans, the Senate will do as little as possible. The period between the elections in November and the start of the new term in January is called the “lame duck” session for its often lack of activity. In this scenario, it would be in the current Senate’s best interest not to move any legislation forward that could be improved in their favour under a Republican president — a SCOTUS justice nomination, for example. To use a sports analogy: they would simply run out the clock; quit while they’re ahead.
But Republicans could win even bigger. They currently occupy 54 out of the 100 Senate seats. If they see landslide wins on 8 November, and win 6 additional Senate seats, they would gain the advantage of a supermajority (60/100) meaning even a filibuster by the Democrats couldn’t stop them from appointing a Trump nominee.
There is one more scenario: Trump wins and the Democrats win back a majority in the Senate. In this scenario it is less clear what the current Senate would decide to do during the lame-duck session. They could follow the course of action in scenario one and approve Obama’s moderate nominee, Merrick Garland. Or they could do nothing and pass the buck to their Democratic colleagues putting them in the same position the Republicans face currently: holding the majority in voting power, but under a president whose nominee they are sure to dislike. Conventional wisdom says this scenario is the least likely because Senate races that fall on presidential election years see a much higher voter turnout rate, and with Clinton slightly ahead in the polls today, the senate may be more likely to swing in the Democrat’s favour. But as we have all seen, this election is unusual and anything could happen.