If this prediction is correct, it will have profound long-term implications both for liberal constitutional politics and for the integrity and capacity of the American constitutional system.
* Marrs Mc Lean Professor in Law, University of Texas School of Law. For valuable comments and conversations, we are grateful to Bruce Ackerman, Jack Balkin, Joseph Blocher, Curt Bradley, Jessica Bulman-Pozen, Josh Chafetz, Guy Charles, Kimberlé Crenshaw, Walter Dellinger, Ryan Doerfler, Nita Farahany, Cary Franklin, Jonah Gelbach, Jamal Greene, Adam Katz, Jeremy Kessler, Marty Lederman, Maggie Mc Kinley, Gillian Metzger, Caleb Nelson, Eric Posner, Jed Purdy, Kelsey Ruescher, David Schleicher, Peter Schuck, Neil Siegel, David Super, Eric Talley, Mark Tushnet, and workshop participants at Columbia, Duke, Harvard, and Penn law schools. Research Serv., IN10469, Supreme Court Vacancies that Arose During One Presidency and Were Filled During a Different Presidency 1 (2016).
This might seem like a reckless prediction to make at a moment when so much is in flux. Although Tushnet allows for the possibility of judicial constitutional hardball, his account focuses on legislative and executive actors, and the most straightforward cases of hardball often occur in legislatures.
But this Essay will document a number of longer-term dynamics that seem poised to perpetuate the divide. Legislative bodies teem with rules and norms, not expressly required by constitution or statute, that govern the interactions among political blocs within the institution.
4, 2017), politics/congress/mcconnell-public-will-not-tolerate-dems-blocking-scotus-pick-n703301 [ See, e.g., Jon Huntsman & Joseph Lieberman, Opinion, Jon Huntsman and Joseph Lieberman: The Republican SCOTUS Blockade Is ‘Not Acceptable,’ Time (Mar. See, e.g., David Dayen, Obama Can and Should Put Merrick Garland on the Supreme Court, New Republic (Nov. Although filibusters of Supreme Court nominations have been exceedingly rare, the tactic was successfully pioneered by Senate Republicans in the Fortas affair. The use of the “nuclear option” to overcome the Gorsuch filibuster has a more recent precedent in Democratic Senators’ use of this method, in 2013, to remove the filibuster for non–Supreme Court nominations. In the rush of real-time narration, as history unfolds around us, it is easy to tell a story about this episode and others before it that emphasizes tit-for-tat mutual escalation and the constitutional hardball of both sides.
25, 2016), (on file with the ) (“There is no modern precedent for the blockade that Senate Republicans have put in place.”). 16, 2016), obama-can-put-merrick-garland-supreme-court (on file with the See id. Such stories, we submit, neglect the elephant in the room.
And Fortas had minor ethics problems that became public in the months leading up to the cloture vote (his more serious ethics problems emerged later). After Nixon was elected, he chose Warren Burger to fill the seat, and Chief Justice Warren honored his stated intention to resign.
Still, the use of a filibuster to stop a Supreme Court nomination was, at the time, unprecedented; observers speculated that the motives of the key Republican Senator leading the charge against Fortas “were, at least, mixed, and that he really intended to save the nominations for GOP Presidential candidate Richard M. Thomas Ferraro, Republican Would Back Garland for Supreme Court, Reuters (May 6, 2010), USTRE6456QY20100506 [ (quoting Republican Senator Orrin Hatch describing Judge Garland as “a consensus nominee” who would be confirmed with bipartisan support, “[n]o question” (internal quotation marks omitted)).
For valuable research assistance, we are grateful to Cristina Alvarez, Joseph Catalanotto, Cortney Creswick, Sam Ferenc, Scott Ferron, Zachary Freund, Gabe Levine, Joe Margolies, Aaron Roper, and Claudia Wack. Trump is the first President since Abraham Lincoln to take office with a Supreme Court vacancy that arose when the presidency was controlled by a different political party. Not included in this accounting, because there was no actual vacancy on the Court, are the events following Chief Justice Earl Warren’s announcement in June 1968 that he intended to retire upon confirmation of his successor.
Outgoing President Lyndon Johnson nominated Associate Justice Abe Fortas to be the next Chief Justice.