The unexpected death of Supreme Court Justice Antonin Scalia in February threw a wrench in the works of an already complicated election year at a time of great political partisanship in Washington and the country. On Monday evening, Vanderbilt Chancellor Nicholas S. Zeppos convened a panel of experts to discuss the sudden vacancy and the controversy surrounding the nomination of a new justice.
“Battle Supreme: Politics, the Law and an Open Seat on the Nation’s Highest Court” was moderated by Zeppos and featured Fox News senior judicial analyst Judge Andrew Napolitano; CNN senior legal analyst Jeffrey Toobin; Vanderbilt University Vice Chancellor and General Counsel Audrey Anderson, who formerly served as deputy general counsel for the Department of Homeland Security; and Vanderbilt Distinguished Visiting Professor Jon Meacham, a Pulitzer Prize-winning presidential historian.
“We are going to call on the best minds, the most prominent pundits, to opine and eventually predict where this will all end up,” Zeppos told the near-capacity audience gathered in Langford Auditorium May 2 for the final Chancellor’s Lecture Series event of the academic year.
President Obama’s nomination in March of Judge Merrick Garland to succeed Scalia quickly drew refusals from Republican senators to consider him or any nominee until after the next president is chosen. But there is little precedent for leaving the court open during the last year of a presidential term, Meacham said.
“This idea that we would leave the court open in the last year of Obama’s presidency is ahistorical at best,” he said. “Taft, Wilson, FDR, Eisenhower, President Reagan—all made appointments in the last year of a term.”
However, history may have little sway in the current political climate.
“Up until Justice Scalia’s death, there were six Catholics and three Jews on the court—the first time in history there were no Protestants. There were six men and three women—the first time time in history there have been three women,” Toobin said. “Those are background facts, which I submit to you are not terribly important.
“[rquote]What is important is that there are four Democratic appointees on the Supreme Court and four Republican appointees, and the reason the Republican Party is going to war over Merrick Garland is only because of that,” he said.[/rquote] “We are looking at the first time in my conscious lifetime that the Supreme Court could have a liberal majority. It has not happened since the late Warren court. … It’s about the politics of the Supreme Court, and the stakes are enormous. That’s why there’s a fight.”
Napolitano called Garland a “good, decent, brilliant hard-working guy,” but also a far more “conservative, traditionalist” judicial nominee than Obama’s previous appointees, Sonia Sotomayor and Elena Kagan. “It’s almost hard to believe the same mind nominated all three of them,” he said.
“In any time but this, the Republicans would and should welcome (Garland) with open arms,” Napolitano said. “In some respects, he’s more traditional than Justice Scalia on criminal law, Fourth Amendment issues and on surveillance issues. But, of course, this is a different environment. … The Republicans want to draw a line in the sand. If you’re asking me if they will cave, I don’t know how to predict that. I think the president expects them to cave.”
“I think there is no chance the Republicans are going to cave, certainly not before November,” Toobin said.
Less guaranteed is Democratic presidential front-runner Hillary Clinton’s re-nomination of Garland should she become president, Toobin said. While Clinton is supporting Garland as President Obama’s nominee, what’s to stop her from nominating a younger, more progressive candidate if elected?
Anderson agreed. “I don’t think we should assume that Hillary, if she gets elected, will go full steam ahead with Merrick Garland.”
For its part, the court is most concerned with its ability to continue to function, Anderson believes. “I think (the justices) mostly care about getting another colleague so that they can continue the business of the court. I think it’s hard to keep the business of the court going if there are only eight people there.”
But the justices are not entirely above politics. “I think that they’re also looking at history,” Anderson said. “They understand the politics involved and know how much is at stake.”
Case in point is Bush v. Gore, the Supreme Court decision that resolved the dispute surrounding the highly contested 2000 presidential election in favor of George W. Bush.
“[lquote]I think the case in our lifetimes that really made the public see the court as politicized in how it reaches decisions is Bush v. Gore—that for some cases, it’s really hard to separate the law from your political or policy or values viewpoint,” Anderson said.[/lquote] “I think Bush v. Gore is the one where people said, ‘Oh my gosh—the justices are practicing politics?’”
“It’s an extreme example, it’s a terrible case, and it’s meaningless constitutionally,” Napolitano agreed. “It was just the Republicans deciding, ‘we’re going to get Bush in there and end this.’ It was decided with intellectual dishonesty, and politics decided it.”
However, the justices agree on far more cases than they do not, Napolitano noted.
“It’s not always 5-4. It’s not even frequently 5-4. It’s not always liberals against conservatives,” he said. “There are many issues that have gone before the court this year that are so into the weeds and below the radar, that there is no liberal or conservative view on them.”
Practically speaking, that doesn’t matter, Toobin said. “It is true that on many, many cases the court is unanimous or close to unanimous, but when we’re talking about the issues that get public attention—when we’re talking about abortion, same-sex marriage, affirmative action, the future of the Voting Rights Act—there is a difference between the Democratic and Republican appointees. There always will be, and that’s OK. Elections have consequences.
“The political cases are what these justices define their own legacies by,” he said. “And I’m not saying that as a criticism.”
From a historical standpoint, presidents who engage deeply in the selection process ultimately seem more satisfied with their Supreme Court appointees, Meacham noted.
“My experience in writing about presidents is if they take a deep interest in it, they have a better average,” he said. “My most recent subject, President (George H.W.) Bush, spent very little time on his Supreme Court appointees and regretted one very much—David Souter. He called him ‘a huge mistake,’ but he only asked him two questions, neither of which were about anything involving the court.”
The 41st president had a similar casual meeting with soon-to-be nominee Clarence Thomas at the Bushes’ Kennebunkport, Maine, compound. “They had about a six-minute conversation, and then they went off and had some crab meat and English muffins, and that was it—that was the interview,” Meacham said.
“I have found that presidents who are lawyers tend to take more of an interest in the intellect and thinking of the nominee than presidents who are not,” said Napolitano, who recalled recent conversations he has had with his Princeton University classmate, Justice Samuel Alito, as well as with Justice Sotomayor.
President George W. Bush asked Alito no substantive questions during their early morning breakfast meeting. Instead, they talked about sports. “The president asked him how a guy from New Jersey could root for the Phillies,” Napolitano said.
“Justice Sotomayor, on the other hand, said the toughest grilling she got through the entire process was by Barack Obama himself, who knew of her rulings on the district court and the circuit court and quoted some of them back to her,” he said. “Now, they are simpatico ideologically and even intellectually, but she said it was a serious interrogation.”