Editorial: D.C. gridlock reaches out and ensnares high court

Last modified: Thursday, February 18, 2016

Ronald Reagan had one. So did Lyndon B. Johnson, Herbert Hoover and Woodrow Wilson. Going back further, Presidents Thomas Jefferson and George Washington did as well. These American leaders all had nominees they put forward for service on the Supreme Court confirmed by the Senate during their final year in office.

Since 1900, the Senate has taken eight votes on Supreme Court nominees during a president’s last year in office, confirming six of them. It has never taken the Senate longer than 125 days to confirm a nominee. The average is actually far shorter: 25 days.

When Justice Antonin Scalia died last weekend, 342 days remained in President Obama’s ultimate year as the nation’s chief executive.

Obama is preparing to submit the name of his choice to replace Scalia, a brilliant conservative legal mind appointed to the court during Reagan’s second term. It is the president’s Constitutional duty to do so — and it is the Senate’s duty to hold hearings on that nominee and schedule and hold a vote to confirm or reject that candidate. The document Scalia revered — and held sacrosanct — specifies exactly that. That’s what should happen. But in today’s political hothouse, only the first part of that process may happen, if Republican leaders make good on statements made within a day of Scalia’s death Saturday that they would refuse to act on a nomination.

The first to throw up alarms over having the Senate do its duty was Majority Leader Mitch McConnell of Kentucky, who said the next president, not the sitting one, should choose the nominee. Other ranking Republicans echoed that call, including two senators who are candidates for the presidency, Ted Cruz and Marco Rubio.

The Republican-led Senate is in recess this week. On this matter at least, it appears ready to remain on hiatus for much of the next year.

Given the antipathy between the GOP and this White House, that’s no surprise. It is another example of the D.C. gridlock that has characterized much of Obama’s presidency, after passage of the Affordable Care Act, and that serves to anger and alienate voters who back candidates as different as Donald Trump and Bernie Sanders.

With Scalia no longer on the bench, the high court is effectively split between its historically conservative and liberal jurists. Leaving the seat open for a year hobbles one of the three branches of government. With an even number of justices on the bench, cases before the court this year may tie in 4-4 votes, unless liberal members are able to swing Justice Anthony M. Kennedy to their side, giving them greater weight in Scalia’s absence. Kennedy, by the way, was a Reagan nominee confirmed in 1988 during that president’s last year in office.

This isn’t just American politics working itself into the usual lather. This is broken government. When the Supreme Court deadlocks on a case before it, the decision made by the lower court is automatically affirmed, but no precedent is set. The court can also elect to return the case to its docket for re-argument in the term that starts in October. But if the Senate refuses to hold hearings on an Obama nominee until a new president is inaugurated, the court’s next term will begin with a cloud hanging over it.

Politically, this presidential election year has already been one for the record books. Maverick campaigns from the far right and left of both parties are winning great traction with the electorate. Most news coverage of the open Supreme Court seat is so far about politics, not jurisprudence. That’s understandable, because Scalia’s unexpected death of natural causes at a ranch in Texas opens a new chapter in Obama’s presidency.

Republican presidents have had much more luck having their philosophies seated on the high court. Of jurists still serving when this year began, Reagan successfully nominated two (Scalia, Kennedy), George H.W. Bush one (Clarence Thomas) and George W. Bush two (John G. Roberts Jr. and Samuel A. Alito Jr.) — or five in all. It was two each for Clinton (Ruth Bader Ginsburg and Stephen G. Breyer) and Obama (Sonia Sotomayor and Elena Kagan) — or four.

If Obama were able to win confirmation for a liberal or moderate nominee, he could tip the balance and, in the doing, possibly help secure his own legacy. That motivation cannot be denied. Depending on how Obama acts, his decision on this vacancy may be remembered, and criticized, as politically tactical.

But it may also be a more noble instance in which the president challenges the party that holds sway in Congress to give a moderate nominee prompt consideration so that all three branches of the government can operate on all cylinders, as Americans have a right to expect they should.


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