Political Focus: The state of the Supreme Court
November 1, 2016
Filed under Opinion
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In light of Justice Clarence Thomas’ remarks at the Heritage Foundation last week, Political Focus will take a look at the effect this election will have on the U.S. Supreme Court.
Thomas stated that Washington is “broken in some ways,” evidenced by the problems with the judicial nomination process.
Let’s get caught up
What Thomas was referring to is the current vacancy in the Supreme Court that came from the sudden death of Associate Justice Antonin Scalia on Feb. 13, 2016.
The death of Scalia, a strong conservative, left the Supreme Court with a split: four justices nominated by Republican presidents and four nominated by Democratic presidents.
The Constitution states that the president nominates the justices with the “advice and consent of the Senate.” With a Democratic president and a Republican-controlled Senate, things got politically complicated.
President Barack Obama was quick to nominate Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to be Scalia’s replacement, and Republicans were even quicker to begin fighting his nomination.
This began a lengthy battle during which the Republicans have seemingly been effective in delaying a nomination until after a new president takes office.
To get caught up further, read the Political Focus on the situation from last March.
Why the fight?
The timing of Scalia’s death was the final element of a perfect storm. Given the time remaining in Obama’s presidency, opposing parties controlling the White House and the Senate, and the strongly conservative ideology of the late justice, an ugly battle was to be expected.
With Scalia’s consistently conservative voting record, his death was already a major blow to Republicans’ agenda. If Democrats are successful in nominating a liberal-leaning justice, it could be the biggest flip in a Supreme Court seat in history and, in turn, flip the Supreme Court entirely.
What effect will the presidential election have on the Supreme Court?
It doesn’t appear that Obama will be able to get his nomination approved in the final months of his presidency, leaving the nomination to the Nov. 8 winner.
Since Scalia’s death, Republicans have arugued that delaying the nomination until after the election would give a say in the decision to the American people. Democrats immediately said that motive was essentially bullshit. As of recently, it appears they may have been right.
Secretary Hillary Clinton has yet to name any possible appointees, but it is very possible that she would choose someone far more liberal-leaning than Garland. If this ends up being the case, the Republicans’ delay tactics would have backfired in a major way.
Just last week, Republicans (including Ted Cruz) came out and said that if Clinton is elected, then Republicans should exhaust all strategies to delay the nomination even longer and continue with a eight-person Supreme Court. Cruz said this would not be unprecedented, though CNN noted that there have been nine justices on the court since 1869.
However, if Trump manages to pull off an election win, he has given the names of 21 potential nominees.
“The replacement of Justice Scalia will be a person of similar views and principles,” Trump stated in his speech to the Republican National Convention on July 21. “This will be one of the most important issues decided by this election.”
Furthering this elections’ impact on the Supreme Court is the fact that this will almost certainly not be the only nomination during the next president’s term.
According to Ballotpedia, “The average age at which a Supreme Court justice retires is 78.7 years old.” There are three justices who are currently serving at age 78 or older.