Supreme Court Vacancy: Go Big or Go Home

Supreme Court Vacancy: Go Big or Go Home

Throughout the 2016 Presidential primary season, anticipated vacancies on the Supreme Court remained a major issue for voters in both major political parties. Some campaigns made it their highest priority to convince primary voters that the respective candidates could be counted on to appoint conservative jurists. Donald Trump, in an effort to assuage skeptical conservative primary voters of his commitment to the pro-life cause and conservative social positions in general released lists filled with various conservative judges, legal scholars, and even sitting Senators. 

This strategy proved effective. While he has sometimes been ambiguous on the need to stick to his list by offering multiple versions, Trump’s surprising success at attracting evangelical voters in early caucus and primary states speaks for itself. The inherent specificity of the promise underlying the Trump campaign’s lists (i.e. here are the names of people you can research and learn their conservative credentials for yourself) accomplished a necessary task: It helped induce those reluctant hold-out voters to take a leap of faith on Trump despite his character flaws and history supporting many liberal policies and politicians. In this way, one could theoretically reconcile voting for Trump and voting one’s conscience.

An ABC News exit poll found that 21 percent of all general election voters ranked Supreme Court appointments as “the most important” factor behind their choice. Trump won these voters by a wide margin, 57 to 40 percent. A similar trend emerged in close Senate races nationally. Because the Senate has a constitutionally prescribed role in confirming appointments to the Court, a majority of Republicans and independents still supported the GOP candidates down-ballot. That trend also meshed well with the internal logic of those reluctant Trump voters, who doubted that Trump and Republican Senators could respectively select and confirm an ideologically consistent conservative appointee in a Democrat-controlled Senate. This belief typically stems from the aggressive and controversial confirmation hearings of Robert Bork and Clarence Thomas.

Then again, conservatives have learned that controlling the White House and Senate does not guarantee the nominee will rule as they hope once on the Court. Many Republicans were surprised when Chief Justice John Roberts (appointed by George W. Bush and confirmed by a GOP-led Senate in 2005) switched positions on a legal challenge to Obamacare in National Federation of Independent Business v. Sebelius (2012). Some observers concluded that Roberts’ decision to uphold the constitutionality of the Affordable Care Act’s individual mandate under Congress’s taxing power (rather than the broader interstate commerce clause rationale) demonstrated a shrewd balancing of political interests to protect his own legacy from partisan criticism. But to the average conservative base voter, it was perceived as a betrayal and continued to overshadow his generally conservative record on the bench.

During the final months before the presidential election, many reliable pollsters believed that Trump had a low chance of winning and that the Democrats were the favorites to win the Senate.  According to Trump, he and his campaign privately believed the polls were probably accurate. Some Party insiders suggested Senate Republicans confirm President Obama’s appointee, Judge Merrick Garland. They maintained that, with Hillary Clinton’s victory certain, replacing a conservative on the Court with a swing vote Justice in the mold of Anthony Kennedy was preferable to the more solidly progressive jurists Clinton would likely nominate. While seemingly reasonable under the circumstances, part of that calculation proved incorrect. Republicans’ worst fears did not materialize. Since mid-December, Trump has promised to announce his choice “very soon.” Advisers say the name will be revealed any day now.

Given that the first Court vacancy to fill is that left by famous conservative Justice Antonin Scalia, the political stakes are particularly high for Republicans. Common phrases convey the Republican standard for high court appointees as whether the person under consideration is devoted to “preserving the rule of law,” “understands that the Court’s jurisdiction is limited to interpreting law rather than making policy, eschews judicial activism and respects constitutional separation of powers,” and the like. These all share a theme of articulating a conservative jurisprudential approach for the country’s highest court. Other conservative judicial criteria include whether the appointee favors a “textualist” method of constitutional interpretation. 

Overall, the underlying message is that, when the time comes, the judge will also increase the likelihood that the landmark holding in Roe v. Wade (1973) will be overturned. Republicans’ Senate majority practically assures confirmation. There is little excuse for failing to deliver a nominee who voters believe would make Scalia proud. If Republicans botch the appointment to fill Scalia’s seat, it will handicap support for Trump and the new Congress’s governing agendas right out of the gate.

Follow this author on Twitter: @AndrewBroering

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