Could hard-right Supreme Court haunt GOP? History says maybe
Be careful what you wish for. That’s the history lesson for Republicans eagerly anticipating Brett Kavanaugh’s ascension to the Supreme Court, which could cement conservative control of the court for a generation. The GOP may ultimately pay a political price. When and how steep? That depends on how momentous the issues and how jolting the decisions, according to legal scholars who’ve studied the high court’s impact on electoral politics. The past century is replete with cautionary tales for political parties that rejoice when the Supreme Court’s ideology turns their way. That track record, coupled with today’s intensifying partisanship, suggests that when it comes to high court nomination fights, both sides should be careful what they wish for. “In a democracy, what matters is winning votes,” said Michael Klarman, a Harvard Law School professor who has studied constitutional history. “And you shouldn’t trust the courts to win your battles for you, because there’s going to be a backlash if they go too far, too fast.” Such words of caution won’t have a discernible impact on senators, who have little incentive to abandon their own or their parties’ ideological preferences. “I’ll vote to confirm Kavanaugh and I’ll take my chances,” said No. 2 Senate GOP leader John Cornyn of Texas. But since Kavanaugh’s confirmation could tip the court decisively to the right for years, the past consequences of some such shifts are instructive. In the 1930s, a conservative Supreme Court knocked down many of President Franklin D. Roosevelt’s New Deal programs aimed at hoisting the country out of the Depression. Statutes letting industries and unions set wages and prices, raising farm income and regulating the coal industry were declared unconstitutional, as was a New York minimum wage law. That helped fuel a 1936 FDR landslide that also gave Democrats 76 Senate and 334 House seats, Election Day majorities neither party has ever matched. The triumph paved the way for congressional control that Democrats didn’t relinquish until after World War II. The Warren Court’s liberal decisions of the 1960s helped power Richard Nixon’s law-and-order rise to the White House in 1968. Rulings buttressing criminals’ rights, like the Miranda vs. Arizona decision requiring authorities to inform arrested people of their rights, provided potent ammunition for Nixon at a time of racial unrest and growing crime rates. “Some of our courts in their decisions have gone too far in weakening the peace forces as against the criminal forces in this country and we must act to restore that balance,” Nixon said in his acceptance speech 50 years ago this week at the Republican national convention in Miami Beach, Florida. The 1973 Roe v. Wade case legalizing abortion has been backed by strong majorities of Americans but spurred the rise of the anti-abortion movement and helped galvanize political involvement by Christian conservatives. Both remain vital factors in American politics and a driving force for the GOP. The disconnect between the court’s ideological leanings and voters’ preferences occurs because justices are appointed for life. With turnover on the bench infrequent, the court’s views often lag behind the election results of the presidents and senators who pick them. “Over the long course of time, the court follows broader political trends,” said Thomas Keck, a Syracuse University political scientist who studies the Supreme Court and political movements. “But it doesn’t tend to turn as quickly as the elected branches” of government. Kavanaugh’s nomination could be pivotal. He would replace the retiring Anthony Kennedy, who’s been the nine-member court’s swing vote on issues including same-sex marriage, corporate campaign contributions and gun rights. Yet Kavanaugh’s confirmation wouldn’t guarantee that the court would veer firmly rightward because forecasting justices’ long-term viewpoints is historically tricky. Chief Justice Earl Warren, a GOP California governor appointed by President Dwight Eisenhower, steered one of the most liberal courts in history. Anthony Kennedy was appointed by conservative icon President Ronald Reagan but protected abortion rights. Chief Justice John Roberts was selected by President George W. Bush but cast the decisive tally preserving Obama’s health care law. But there will inevitably be numerous opportunities for the court to address politically searing issues. In its coming term alone, the justices might face cases about special counsel Robert Mueller’s investigation of Russian intrusion in the 2016 presidential race, religious liberty and sexual orientation. Future cases could emerge over curtailing Obama’s health care statute, revoking protections against deporting young immigrants and curbing abortion rights — issues that galvanize conservative and liberal voters alike. Joseph Ura, a political scientist at Texas A&M University, says the impact of a sharp, rightward court shift could be felt quickly enough to affect a Trump re-election bid in 2020, if not sooner. In a 2014 study, Ura used computer modeling to compare five decades of important court decisions to the public mood. He concluded that there is a quick backlash against shifts in the court’s ideology that lasts about two years before eroding, followed by a slight, longer-term swing toward the justices’ viewpoints. Ura’s guidance to Democrats, should a Kavanaugh confirmation produce high-profile court decisions invalidating liberal programs? “My advice to them is to campaign on this,” he said. Republished with the permission of the Associated Press.
Martin Dyckman: Politics mars the Supreme Court nomination process
The maxim that “no good deed goes unpunished” is often borne out in politics these days, and if President Barack Obama hasn’t taped it to his shaving mirror, he should. In Merrick Garland, he found an ideal Supreme Court candidate, one whom, were the present roles reversed, a Republican president might have nominated and a Democratic Senate would have been obliged to confirm. His credentials are impeccable: Ivy League degrees. Clerkships at a Court of Appeals and at the Supreme Court. Antitrust practice in one of Washington’s blue ribbon firms. Distinguished service in the Justice Department, where he supervised the investigations and prosecutions of the Kansas City, Unabomber and Atlanta Olympics bombings. A centrist record in nearly 20 years as a judge of the Court of Appeals for the District of Columbia Circuit, where he is now the chief judge, and where he befriended John Roberts, the current chief justice of the United States. Garland is known as a diligent scholar who respects Supreme Court precedents, strives for consensus, and writes opinions that are “models of judicial craftsmanship,” according to Adam Liptak of the New York Times. Seven still-serving Republican senators supported Garland’s confirmation to the Circuit Court in 1997. Among them is Orrin Hatch of Utah, who was quoted in 2010 as saying Garland would have made a “consensus nominee” for the Supreme Court and dropped his name after Antonin Scalia died. Now, the oleaginous Hatch is saying “Let the voters decide,” as if they didn’t already do that when they re-elected Obama. At 63, Garland is a decade older than the usual Supreme Court nominee. The not-so-subtle message to the Senate majority is that a future Republican president might be able to fill the seat sooner than any Democrat might anticipate replacing Roberts. Despite all that, Senate Republicans are still refusing a hearing on the nomination and most aren’t even willing to meet with Garland privately. They’re holding out in the hope that a Republican will be elected in November to nominate a conspicuous reactionary like Scalia. In so doing, they’re catering to the Koch brothers, the NRA, and other elements of the rabid right that actively oppose Garland. What they might get instead, of course, is the nomination of someone younger and more liberal if a new Democratic president finds Scalia’s seat still vacant. While praising Garland’s qualifications and calling on the Senate to act, Hillary Clinton has been notably silent about whether she would resubmit his name in January 2017. As for Bernie Sanders, he too has demanded the Senate act on the nomination, which he said he would vote to confirm. But he also said explicitly that if it does not, he would ask Obama to withdraw it so that he could nominate someone considered to be more progressive. Both he and Clinton are open about wanting the court to overturn the Citizens United decision, which she said would be a criterion for any justice she might appoint. That’s where Obama must truly feel punished. Although the Democratic Party, most of its candidates and virtually all their center and left-of-center supporters are making hay — i.e., campaign contributions — out of the Senate majority’s position, their enthusiasm for Garland himself is notably muted. Jeffrey Toobin, the New Yorker’s eminent authority on the Supreme Court, took note of this in writing that Obama’s choice reflected not only his “boundless faith in the meritocracy” but also his “distaste for the vulgar realities of politics.” He could, Toobin continued, “have chosen a nominee who would rally his core supporters, and thus assist his party in races up and down the ballot.” The short-listed candidates included a woman, an African-American and an immigrant from India who are respected judges. But, says Toobin, “this President prefers technocrats to Democrats.” That said, Toobin thinks it is “outrageous,” and I agree, for the Senate to act as if Obama were re-elected for only three years rather than four. In signaling to their core voters — and more importantly, their allied lobbies — that the election will be in large part about the future of the Supreme Court, the Republicans have also made that quite clear to Democrats and independents. Fair enough. Vote Democratic as if your life depends on it, because it does. Although there have been three Democratic presidents since Lyndon Johnson, the Supreme Court has been controlled by Republican appointees since Warren Burger replaced Chief Justice Earl Warren in 1969. It would still be so even if Garland is confirmed. Interestingly, Republican presidents have been almost as much in thrall of the meritocracy as Bill Clinton and Obama have been. Like Scalia and Garland, every present justice has an Ivy League law degree — all from Harvard, like Obama himself, or from Yale, like Clinton, except for Ruth Bader Ginsburg, who started at Harvard and finished at Columbia. Moreover, the last justice who wasn’t Ivy League was Sandra Day O’Connor, also the last who ever had experience as an elected politician. O’Connor’s service in the Arizona Senate informed her vital role as a consensus builder and frequent deciding vote on the Supreme Court. The present court’s deficiency in that regard is reflected in the frequent 5-4 splits over hot-button political issues such as Obamacare and campaign finance. This is a condition that impairs the legitimacy of the court in the public’s eyes. Imagine if Brown v. Board of Education, the historic decision against racial segregation in public school, had been decided by anything less than a unanimous vote. Warren’s great service to his country, reflecting his background as California’s attorney general and governor, was to write the opinion in such a way as to ensure that it would be unanimous. He wasn’t Ivy League either, by the way. His law degree was from the University of California at Berkeley. *** Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives in suburban Asheville, North Carolina.
