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September 27, 2016

"Why Nobody's Talking About the Supreme Court"

The title of this post is the headline of this timely and interesting post-debate Bloomberg View piece by Noah Feldman. Here are excerpts:

The U.S. Supreme Court didn’t come up Monday in the first presidential debate, and so far, it hasn’t been an important campaign issue. Given the unprecedented vacancy during an election season, that seems weird. But there is an explanation: The election’s consequences for the court are asymmetrical for the two political parties.

If the Democrat, Hillary Clinton, is elected, it will change the court’s balance, either through the confirmation of President Barack Obama’s nominee, Judge Merrick Garland, in the lame-duck session or with the appointment of Garland or another liberal after she takes office.  If the Republican, Donald Trump, is elected, all he can do is replace the late Justice Antonin Scalia with another conservative. That won’t change the court’s political balance.  For that to happen, Trump would need Justice Ruth Bader Ginsburg or Justice Stephen Breyer to be unable to serve, which won’t happen voluntarily for either in the first four years of a Trump presidency.

The result of this asymmetry is that neither candidate has much reason to put the Supreme Court front and center.  Clinton can try to appeal to her base by promising to reshape the Supreme Court, which is an inspiring vision for some liberals, to be sure.  But it isn’t good politics for her to trumpet a liberal transformation of the court when she’s trying to win over the median voter, who may well be skeptical of more judicial activism.

What’s more, Clinton lacks a signature constitutional issue that would make liberals excited about a progressive majority.  That’s because much of the liberal constitutional agenda has been achieved in the last two years, courtesy of Justice Anthony Kennedy.  He wrote the gay-marriage decision in 2015. In 2016, he delivered an opinion protecting affirmative action in higher education. He also provided the deciding vote in the Texas abortion case, safeguarding the abortion right for another generation.  With these decisions, Kennedy effectively took away the sense of constitutional fear and desperation that might otherwise be haunting liberals alongside the possibility of a Trump presidency....

For Trump, the calculus is a little different.  He can’t credibly promise to be a change agent when it comes to Supreme Court appointments. All he can do is say he will hold the line by appointing a conservative -- and indeed he has by releasing the names of 21 possible nominees.  That might have been enough to win over Texas Senator Ted Cruz, if you take Cruz’s word for his flip-flop on endorsing Trump.  But Trump doesn’t really like to depict himself as a movement conservative trying to preserve the status quo. His message is all about how things are broken.  Even if he chose to say that the Supreme Court got it wrong on gay marriage, abortion rights and affirmative action, he can’t say that he would be able to appoint justices who would change those results.

Furthermore, diehard conservatives who care about the Supreme Court are sophisticated enough to understand that they’ve lost on the big-ticket issues that have mattered most to them over the last 20 years. They know the court won’t immediately reverse itself.  Activist legal conservatives are focused mostly on preserving religious liberty in the aftermath of the gay-marriage decision, a position that is essentially defensive and operates on the (correct) background assumption that the culture war has already been lost.

The upshot is that for Trump, making the Supreme Court an election issue doesn’t hold much appeal as a way to energize the right or to capture new voters from the center. He can certainly criticize the courts when it’s convenient, or dismiss their holdings as “anti-police” the way he did during the debate.  So don’t expect much more on the Supreme Court during this election season.  When the dust has settled, however, the Supreme Court will return to the front pages very quickly indeed, and the question of who will succeed Scalia will be one of the most pressing issues facing the new president, whoever it is.

As long-time readers know, and as this prior post explains, I would add to this analysis the important fact that Prez Obama picked a nominee that is a relative political "yawner" for both parties.  As I have explained before, I thought back in March and continue to think today that the current politics around SCOTUS would be much different if Prez Obama made a ground-breaking rather than just a moderate pick, and that would be especially so if he had selected the only woman of color who was seriously vetted for this open SCOTUS spot, US District Judge Ketanji Brown Jackson.  Though I dislike discussion that focus on "playing the race card" or "playing the gender card," I like to be honest when highlighting that it is the personnel and not just the politics at the heart of this "non-issue" reality. 

If the GOP Senate was blocking even a hearing for the first woman of color nominated to the Supreme Court, I am certain Clinton would now be seeking to appeal to her base (and also to moderates) by promising to not let the GOP Senate continue to push Judge Brown Jackson to the back of the bus.  Actually, I suspect Hillary Clinton may be much too cautious politically to actually try to play a race/gender card at the same time via a Rosa Parks reference, but I am certain some of her surrogates (as well as some Dems seeking to wins seats in the Senate) would not be afraid to make this kind of pitch.

Prior related posts on new SCOTUS nominee possibilities:

September 27, 2016 at 05:43 PM | Permalink


I stick to the various things I said in the past about the thought experiment made.

The person, especially in this day (the reference to Thomas being anachronistic), is someone seen as too junior, would be an easy target for Republicans on that ground and to the degree it is a "race" card issue, it would be taken to be a standard left tactic. The reference to Black Lives Matter in the past discussion only underlines that. She would be replacing Scalia. There would be a strong push for someone moderate that the Right could support. Garland was a prime choice there. Clinton doesn't need yet another thing to get support from women or blacks especially with Trump as her competition.

There would be somewhat more attention but Republicans would likely stick to their guns & net not really get more hurt for it. She could very well somewhat have future elevations negatively affected and not be able to do her job for around a year. And, I still don't think Garland had no value including in key battleground states. Finally, I just saw some senator "talking" about it. And, what about the COURTS in general? "Nobody" (= not enough for some) is really talking about them & it's rather important.

Sotomayor was a groundbreaking pick. Kagan was to the extent she was not a sitting judge and now people are saying she could in effect be the "real" Chief Justice. Nice job Obama. The third pick was to replace Scalia & he picked a qualified pick that made Republicans look like they are anti-government and I have seen people talking about that. Good job. I welcome President Hillary Clinton picking someone less moderate/younger now that Republicans rejected him.

Posted by: Joe | Sep 27, 2016 8:02:39 PM

Anyway, I disagree with the value of picking someone who (however we feel the "rules" are wrong) easily be challenged by Republicans as a too inexperienced liberal type who is not a serious replacement of their hero. Just a partisan move.

Either way, I respect Obama picking someone like Garland on a basic civics level.

Posted by: Joe | Sep 27, 2016 8:08:14 PM

Reasonable points, Joe.

Posted by: Doug B. | Sep 27, 2016 8:43:37 PM

no more 'rat judges or justices.

Posted by: federalist | Sep 28, 2016 9:58:32 AM

I think Joe's analysis is right on the money. And federalist's lack thereof amusing. (No more 'can judges or justices,federalist!) ;)

Posted by: lawyer | Sep 28, 2016 12:41:36 PM

I appreciate Prof. Berman's comments & do appreciate him "thinking outside the box" here.

I just differ on the bottom line in certain respects.

Posted by: Joe | Sep 28, 2016 1:01:09 PM

I appreciate being appreciated, Joe!

Posted by: Doug B. | Sep 28, 2016 6:43:59 PM

I think Joe's analysis is right on the money. And federalist's lack thereof amusing. (No more 'can judges or justices,federalist!) ;)

Well, lawyer, I look forward to your defense of 'rat judges next time I criticize one. No one in here seems to be able to defend them on the merits.

Posted by: federalist | Sep 29, 2016 1:56:44 PM

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