Tuesday, May 31, 2016

Will Trump vs. Clinton...

...really come down to which of them is the lesser of two evils? Or, more specifically, will it come down to who gets to appoint justices to the Supreme Court?

That's not a bad way to think about it. Or is it?

On Friday night my wife and I were out with another couple and the conversation turned to -- surprise! -- politics. (Okay, I was the one who -- surprise! -- brought up the subject.) And, although the woman was a typical Fox News-brainwashed baby boomer, her husband (a former college professor) took a more nuanced view. He conceded that he probably wouldn't vote for either candidate but said he didn't want Mrs. Clinton to be the one to shape the Supreme Court for generations.

I nodded silently (I didn't argue, remember?), but wondered later, Will there ever be another justice elevated to the Supreme Court?

I'm only half-serious, but before I get to why, let me remind you of a post I wrote back in February in which I noted that three of the remaining eight Supreme Court justices will be 78 or older in November:

What if -- what if -- one or more of those other justices died? Or retired? What if, in the next year or so, they all did. (That's not so far-fetched is it? How many people do you know over the age of 77 that are still working?) Then what? Would President Obama get to replace any of them? Would the next president? Or would the Supreme Court of the United States just have to get by with five justices? Will any president ever get to nominate another Supreme Court justice? Or would the institution just wither away?

Then this morning I read in the Times, "Rulings and Remarks Tell Divided Story of an 8-Member Supreme Court" (my emphasis):

Justice Ginsburg, the leader of the court’s liberal wing, sounded less content with the current state of affairs on Thursday at a judicial conference in Saratoga Springs, N.Y.

“Eight, as you know, is not a good number for a multimember court,” she said.

In his own remarks, Justice Breyer said an eight-member court was capable of deciding most cases, supporting the point with statistics from recent terms.

“We’re unanimous 50 percent of the time,” he said. “Twenty percent of the time we’re 5-4, and half of those are kind of random, not what the press would call the usual suspects.”

So in other words, maybe we do -- or maybe we don't -- need nine judges after all.

But let's get back to my original question: What if they never vote to approve another Supreme Court justice?

I mean, let's go through the various scenarios. First, if Trump or Clinton got elected with a 60-vote, filibuster-proof, super-majority in the Senate, their appointees would likely sail through. Fair enough. But how realistic is it that either party would gain a super-majority in the upper chamber? Worse, what if Trump or Clinton were elected with the other party in control of the Senate? Then, surely, nothing would happen.

I know what you're thinking: But Senate Majority Leader Mitch McConnell (above, left) said he's only "following a longstanding tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year." If Mrs. Clinton were elected in November he'd certainly confirm her justices, right? Right?

I'm not so sure. This is the same crowd that accused President Obama of trying to "pack" the D.C. Circuit Court of Appeals by the radical practice of appointing judges to fill vacancies. Do you really think they wouldn't come up with some other cockamamie reason for blocking a President Clinton's SCOTUS nominees?

And, to be fair, after this year a Democratic Senate led by Sen. Chuck Schumer of New York (above, right) probably wouldn't approve a President Trump's nominees, either. What goes around, comes around.

So, the bottom line is that maybe the Supreme Court isn't the biggest factor in this year's election. Maybe there will never be another nominee confirmed in our lifetime. Who knows?

No comments: