Here & Now

UW Expert Explains History Of U.S. Supreme Court Nominations

ZAC SCHULTZ:

WHEN ISSUING DECISIONS, THE U.S. SUPREME COURT OFTEN DEFERS TO PRECEDENT, OR SIMILAR CASES FROM HISTORY. BUT WHEN IT COMES TO REPLACING A JUSTICE IN AN ELECTION YEAR, ESPECIALLY WHEN THE BALANCE OF THE COURT IS AT STAKE, THIS IS UNPRECEDENTED. JOINING US NOW IS UW POLITICAL SCIENCE PROFESSOR DAVID CANON. THANK YOU FOR BEING HERE.

DAVID CANON:

GOOD TO BE WITH YOU.

ZAC SCHULTZ:

ARE THERE ANY GOOD EXAMPLES FROM HISTORY WE CAN LOOK TO?

DAVID CANON:

YES. IN FACT THERE ARE 14 CASES WHERE PRESIDENTS HAVE HAD THEIR NOMINEES CONFIRMED DURING A PRESIDENTIAL ELECTION YEAR. YOU HAVE TO GO BACK ALL THE WAY BACK TO 1852 AND 1844 TO FIND CASES WHERE NOMINEES WERE NOT APPROVED FOR VACANCY ON THE COURT. 1852 YOU HAVE A JUSTICE WHO DIED IN JULY. CONGRESS IS ONLY IN SESSION UNTIL LATE AUGUST. THE NOMINATION WENT IN A WEEK BEFORE THEY WENT OUT OF SESSION SO THE SENATE DIDN’T ACT. THE ONLY CASE REALLY HISTORICALLY WE HAVE WHERE A PRESIDENT HAD A TOUGH TIME GETTING A NOMINEE THROUGH WAS JOHN TYLER IN 1844. HE WAS A PRESIDENT WHO SUCCEEDED WILLIAM HENRY HARRISON AFTER ONLY ONE MONTH IN OFFICE, HE DIED. HIS OWN PARTY REJECTED HIM, KICKED HIM OUT OF THE PARTY BECAUSE HE WAS TRYING TO ASSUME TOO MUCH POWER AS PRESIDENT. THEY REJECTED SEVEN OF HIS NOMINEES IN A ROW. THERE WERE VACANCIES ON THAT COURT FOR OVER TWO YEARS. THAT REALLY IS THE ONLY PRECEDENT WE HAVE. IN RECENT HISTORY AS RECENTLY AS 1988 WE HAD A DEMOCRATIC SENATE CONFIRM A NOMINEE FROM RONALD REAGAN TO SERVE ON THE HIGH COURT. AND THAT WAS DONE BY A UNANIMOUS, 97-0 VOTE IN A PRESIDENTIAL ELECTION YEAR.

ZAC SCHULTZ:

THE SENATE AND THE COURT ALWAYS LOOK TO HISTORY, BUT POLITICALLY SPEAKING HOW MUCH VALUE IS THERE IN HISTORY? BECAUSE IT SEEMS IN THIS DAY AND AGE EITHER SIDE WILL DO WHATEVER THEY THINK WILL HELP THEM THE MOST.

DAVID CANON:

WELL, CLEARLY. AS YOU POINTED OUT IN YOUR INTRODUCTORY COMMENT, THIS IS — THE COURT IS HANGING IN THE BALANCE HERE. THIS IS THE PIVOTAL VOTE THAT COULD SHIFT IT FROM A 5-4 CONSERVATIVE TO 5-4 LIBERAL MAJORITY. THAT’S WHY THERE’S SO MUCH AT STAKE IN THIS DEBATE RIGHT NOW. AND WHY THE LEADING SENATORS, INCLUDING MAJORITY LEADER MITHC MCCONNELL, CAME RIGHT OUT OF THE GATE AFTER SCALIA DIED SAYING WE’RE NOT GOING TO ACT ON THIS. WE CAN’T HAVE A LIBERAL NOMINEE BE NOMINATED TO THE COURT. NOW THEY’VE TAKEN QUITE A LOT OF HEAT OVER THAT AND HAVE SINCE BACKED A LITTLE BIT AWAY FROM THAT CLAIM. SOUNDS LIKE SENATOR GRASSLEY WHO’S CHAIR OF THE JUDICIARY COMMITEE MAY BE WILLING TO ACTUALLY HAVE A HEARING. SO MY GUESS IS THEY PROBABLY WILL AT LEAST BE WILLING TO ENTERTAIN A NOMINEE. BUT IT’S GOING TO BE A TOUGH BATTLE.

ZAC SCHULTZ:

I’VE READ A LOT OF COMMENTARY SAYING THAT OBAMA’S IS MOST LIKELY TO NOMINATE SOMEONE WHO’S RECENTLY PASSED, BEEN CONFIRMED UNANIMOUSLY, SO IT MAKES IT MORE DIFFICULT FOR ANY REPUBLICANS IN THE SENATE TO SAY NO, THEY’RE NOT QUALIFIED.

DAVID CANON:

RIGHT. I THINK THAT’S THE WISE STRATEGY FOR THE PRESIDENT TO GO THAT ROUTE. THERE ARE BASICALLY TWO DIFFERENT ROUTES HE COULD GO. ONE WOULD BE TO ENERGIZE HIS BASE AND TO PICK SOMEONE WHO WILL ABSOLUTELY GALVANIZE THE DEMOCRATIC BASE IN THE PRESIDENTIAL ELECTION, KNOWING THE SENATE IS GOING TO TURN THEM DOWN. SOMEONE LIKE ELIZABETH WARREN COMES TO MIND. A TRUE LIBERAL WHO LIBERAL DEMOCRATS WOULD REALLY LIKE TO SEE ON THE COURT, BUT THE SENATE NO WAY WOULD THEY EVER DO THAT. SO I THINK IT’S LESS LIKELY THE PRESIDENT WILL DO THAT AS OPPOSED TO THE SECOND STRATEGY WHICH IS TO PUT SOMEONE FORWARD WHO REALLY HAS STRONG NONPARTISAN CREDENTIALS. HAS RECENTLY BEEN CONFIRMED. SRI SRINIVASAN IS A NAME OFTEN MENTIONED HERE, CONFIRMED A COUPLE YEARS AGO TO THE D.C. COURT OF APPEALS, OFTEN SEEN AS THE NUMBER TWO COURT IN THE COUNTRY BEHIND THE SUPREME COURT BECAUSE THEY DEAL WITH SO MANY IMPORTANT CASES. WAS CONFIRMED BY A 97-0 VOTE. CLERKED FOR JUSTICE SANDRA DAY O’CONNOR. WORKED IN BUSH ADMINISTRATION SOLICITOR GENERAL OFFICE. WORKED FOR OBAMA. VERY STRONG BIPARTISAN CREDENTIALS THERE. IT WOULD BE VERY HARD FOR THE SENATE TO SAY HE WASN’T QUALIFIED AFTER THEY JUST CONFIRMED HIM WITH A UNANIMOUS VOTE FOR THE SECOND MOST IMPORTANT COURT IN THE COUNTRY.

ZAC SCHULTZ:

IF WE DO END UP WAITING A YEAR OR LONGER TO FILL THIS VACANCY, WHAT HAPPENS WITH A 4-4 COURT? LOWER COURT DECISIONS STAND, BUT SOME OF THOSE CONFLICT.

DAVID CANON:

THAT’S RIGHT. YOU REALLY WILL HAVE CONFUSION. THIS WOULD BE THE LONGEST VACANCY IN THE HISTORY OF THE COUNTRY. WE HAD ONE OTHER TIME BACK WITH PRESIDENT NIXON THERE WAS A POSITION OPEN FOR A LITTLE OVER A YEAR. BUT THIS WOULD BE EVEN LONGER THAN THAT IF IT WAS HELD OPEN. SO WITH THE 4-4 VOTES, THE LOWER COURT OPINION STANDS, BUT WHEN YOU HAVE CONFLICTING LOWER COURT RULINGS, THEN IT’S REALLY NOT CLEAR WHAT WOULD HAPPEN. YOU’D BASICALLY HAVE DIFFERENT PRECEDENTS IN DIFFERENT PARTS OF THE COUNTRY. THE COURT CAN ALSO DECIDE IN THOSE CASES THAT ALREADY HAVE BEEN VOTED ON TO REHEAR THE CASE AFTER THEY GET A NEW JUSTICE. SO THEY CAN POSTPONE IT RATHER THAN ISSUING A 4-4 RULING, UNTIL A NEW JUSTICE WOULD ARRIVE AND THEN REHEAR THAT SAME CASE. IT’S POSSIBLE THEY WOULD DO THAT IN A FEW OF THESE HIGH-PROFILE CASES. THEY HAVE A VERY FULL DOCKET RIGHT NOW OF REALLY IMPORTANT, LANDMARK DECISIONS.

ZAC SCHULTZ:

BOTH DEMOCRATS AND REPUBLICANS ARE DIGGING UP OLD STATEMENTS BY PARTY LEADERS SHOWING THEM ON THE EXACT OPPOSITE SIDE OF THIS ISSUE AS RECENTLY AS A FEW YEARS AGO AT THE END OF THE BUSH ERA. IS THIS JUST MORE HYPOCRISY IN GOVERNMENT? DO YOU THINK THE PUBLIC WILL BE EVEN MORE DISGUSTED BY WHAT THEY HEAR WHEN THEY REALIZE NEITHER SIDE IS PLAYING IT HONEST? THEY’RE BOTH JUST LOOKING FOR A PARTISAN EDGE?

DAVID CANON:

CLEARLY BOTH PARTIES WHEN THEY’RE IN THIS SITUATION WHERE THEY HAVE A PRESIDENT OF THE OPPOSING PARTY MAKING A KEY NOMINATION, HAVE FILIBUSTERED NOMINATIONS TO LOWER COURT POSITIONS. THE SUPREME COURT’S A LITTLE DIFFERENT. THE SUPREME COURT IN FACT WHEN THE SENATE WAS CONTROLLED BY DEMOCRATS, THEY DID GET RID OF THE FILIBUSTER ON LOWER COURT NOMINATIONS, BUT THEY PRESERVED THAT FOR THE SUPREME COURT NOMINATIONS BECAUSE THE SUPREME COURT IS DIFFERENT. SO WHILE THERE’S BEEN PARTISAN POSTURING ON BOTH SIDES, WHERE REPUBLICANS HAVE SAID THAT THE PRESIDENT SHOULD BE ABLE TO HAVE WHO HE WANTS, DEMOCRATS HAVE SAID THE SAME THING AND THAT’S FLIPPED BACK AND FORTH DEPENDING ON WHO CONTROLS THE SENATE. THE SUPREME COURT TYPICALLY AT LEAST THE PRESIDENT HAS HAD THE OPPORTUNITY TO MAKE NOMINATIONS BECAUSE ARTICLE 2 OF THE CONSTITUTION DOES SAY THE PRESIDENT SHALL MAKE THESE NOMINATIONS. IT DOESN’T SAY HE MAY. HE’S REQUIRED TO SUBMIT THOSE NOMINATIONS. HE DOESN’T HAVE ANY CHOICE. THE SENATE REALLY NEEDS TO DO ITS CONSTITUTIONAL OBLIGATIONS OF HOLDING HEARINGS AND HAVING A VOTE. THEY’RE NOT COMPELLED OBVIOUSLY TO SUPPORT THE PRESIDENT’S NOMINEES BUT AT LEAST THEY DO NEED TO MOVE AHEAD WITH THE PROCESS.

ZAC SCHULTZ:

REPUBLICANS LIKE TED CRUZ ARE SAYING THE 2nd AMENDMENT HANGS IN THE BALANCE OF THIS CHOICE. I’VE SEEN LIBERALS TALKING ABOUT THE FUTURE OF ABORTION RIGHTS, CIVIL RIGHTS BEING IN THE BALANCE. IS IT REALLY THAT BIG?

DAVID CANON:

IT REALLY IS THAT BIG. A LOT OF THESE CASES, THESE CRITICAL CASES HAVE BEEN 5-4. IF YOU LOOK AT EVERYTHING FROM VOTING RIGHTS, TO ABORTION, TO IMMIGRATION, TO HEALTH CARE REFORM, TO GUN RIGHTS. THERE ARE SO MANY OF THESE ISSUES THAT ARE ACTUALLHY ON THE DOCKET FOR THIS TERM. AND IT DOES HANG IN THE BALANCE, GOING FROM A 5-4 CONSERVATIVE MAJORITY TO 5-4 LIBERAL MAJORITY. SO YEAH, TED CRUZ IS NOT EXAGGERATING THERE.

ZAC SCHULTZ:

WE’VE GOT JUST A FEW SECONDS LEFT BUT IS THERE ANY OTHER WAY THAT ANTONIN SCALIA COULD BE REPLACED OTHER THAN WITH A MAJOR CONTROVERSY?

DAVID CANON:

WELL IT WILL BE CONTROVERSIAL. I THINK THAT PRESIDENT OBAMA CAN MAKE IT LESS CONTROVERSIAL IF HE DOES PICK A CENTRIST, SOMEONE LIKE A SRI SRINIVASAN, THAT CLEARLY WILL APPEAL TO PEOPLE ON BOTH SIDES OF THE AISLE AT LEAST IN MORE NORMAL TIMES IT WOULD. BUT EVEN SOMEONE LIKE THAT IS GOING TO BE A TOUGH BATTLE.

ZAC SCHULTZ:

PROFESSOR, THANKS FOR YOUR TIME.

DAVID CANON:

THANK YOU.