Tag Archives: confirmation

Vacancy Cycle

An elephant representing the Grand Old Party (GOP) refuses to confirm Supreme Court vacancies until a Republican president is elected.

 

The conflict of “separation of powers” is one that exists epically in American history. Generations of Americans have witnessed the battle of the Supreme Court to maintain its position as a non-partisan institution: fighting off threats from other branches of government to influence it with politics. One example occurred in 1937, when Franklin Delano Roosevelt unsuccessfully proposed the Judicial Procedures Reform Act of 1937 to implant support for his legislation into the courts. The Supreme Court maintained its position, and the resulting conflict was documented by the press, such as in a cartoon by John Knott and in an editorial appearing in the Dallas Morning News. Another confrontation in more recent memory was between a Republican controlled United States Senate and President Barack Ob ama over the nomination of a Supreme Court Justice to fill the vacancy left by Justice’s Antonin Scalia’s sudden death in February of 2016. The refusal of the Senate to hold even a hearing for Merrick Garland, a nominee who had broad bi-partisan support, resulted in a similar anticipation of disaster and destruction of convention by the press. Particularly, the threat of a problematic cycle which would undermine the political institution in which the average Supreme Court Justice confirmation took 25 days (“How Scalia Compared With Other Justices”) was satirized in the same way be the respective medias of each time, as explored through a Mike Luckovich cartoon and a Politco article describing the tension in attempting to secure the Supreme Court vacancy.

In the final months of Barack Obama’s second term as president, he tried to secure a Supreme Court nomination to fill the seat left behind by Justice Antonin Scalia’s death in February 2016. However, due to a political interest in nominating a Supreme Court Justice who would represent the values of the GOP rather than Obama’s Democratic party, the Senate refused to approve the nominations proposed by Obama. Historically, the Supreme Court has had a reputation of high esteem in the public view, as it has the final say of the law and the Justice holds their position until they either retire or die. The conflict of failing to secure a nomination to fill the vacancy created anxiety amongst the American public and press, as this sort of political pandering over something as pure as the Supreme Court was seemingly unprecedented.

This anxiety is illustrated in a March 11, 2016 cartoon by Mike Luckovich called “The Court”. The two-panel cartoon depicts the strategy led by Senate Majority Leader Mitch McConnel and the Republican controlled Senate at the time. In the first panel, an elephant wearing a suit, which represents the GOP, states “I’ll ignore the Constitution and block filling the Supreme Court vacancies until there’s a GOP President…” The second panel of the cartoon shows the same elephant standing in a court room, and the bench labeled “Supreme Court”, is completely vacant with spider webs between the vacant seats. The calendar on the wall has the year “2036”, on it, and the elephant has his finger’s crossed and eyes closed, saying “…C’mon 2040…”. The cobwebs also suggest that this stubbornness will inhibit the nomination of not only the vacancy that existed in 2016, but all other vacancies which would eventually present themselves over the course of 20 years. The cartoon therefore suggests that the refusal of the Senate to confirm a nomination in 2016 would continue into 2036 and onwards until a GOP president is elected to nominate a viable judge.

This viewpoint is also articulated in a Politco article from March 29, 2016 called “The Supreme Court: The Nightmare Scenario”. In it, Richard Primus describes the threat of a devolution of political convention with the stagnancy of filling the Supreme Court vacancy. He states:

“That bigger threat is this: The stalemate isn’t time-limited and it isn’t stable. It could last a lot longer than the present election cycle, and if it does, the conflict over Justice Scalia’s successor could escalate far beyond its current dimensions. This is because the Supreme Court’s role in American government rests on a set of conventions for avoiding all-out political conflict—and once those conventions start to crumble, there’s no way to tell how it will end,” (Primus).

Specifically, a nightmare scenario would in theory be possible, though not necessarily probable, where the Republican Senate would continue to refuse to confirm a Democratic nomination from Hillary Clinton if she ario does not occur exactly, the threat of the destruction of political conventions by escalating a conflict in attempting to control the courts is made visible both by the article and the cartoon.

There are some interesting parallels between FDR’s attempt to expand the number of nominations possible to be made and the Republican Senate’s attempt to wait for a Republican nomination in that both were efforts to control the political leanings of the Supreme Court. Specifically, both the Luckovich and Knott cartoons satirized a very immediate and visible result of the respective breaches in power. While the Knott cartoon emphasized that the expansion of FDR’s power would manifest itself through unprecedented third term ambitions, the Luckovich cartoon suggests an eternal vacancy in the Supreme Court due to the stubbornness of a GOP Senate. The most important difference between the two cartoons, however, is the accuracy of their respective predictions. FDR did end up running for and winning a third term, but the GOP did not have to wait until past 2036 for a Republican president: Donald Trump was elected in 2016.

The difference between the Dallas Morning News editorial and the Politico article is the opposite of what occurred between the two cartoons. The 2016 article was a better descriptor of long term implications of the Senate refusal to confirm a Supreme Court vacancy than the editorial was in articulating the long-term implications of “The Judicial Procedures Reforms Bill of 1937”. The editorial suggested that the bill represented a descent into totalitarianism, and today it is known that FDR’s passage of the New Deal did not totally undermine American democracy. However, the observation that the GOP Senate’s behavior represented an escalation which would manifest into the issues of checks and balances beyond 2016 was more accurate. The failure to confirm a Supreme Court Justice nomination did leave only 8 Justices, allowing for 4-4 deadlock votes to occur. For example, the deadlocked vote for United States v. Texas, No. 15-674 allowed for Obama’s executive order to retain over 5 million undocumented immigrants in the U.S. to stand without official support from the Supreme Court (“Supreme Court Justice”).

The fact that it took about four months to confirm President Donald Trump’s nomination of Justice Neil Gorsuch galvanized the infamy of the Senate’s actions in 2016 to hold the Supreme Court seat open for record breaking amount of time (Berenson 2017). The disruption caused by the actions by the Senate alluded to the abilities for political branches to manipulate the processes of the Supreme Court. Unlike the historians who observe FDR’s actions in 1937, contemporaries can only wait to understand the full contribution to political procedures the Supreme Court vacancy of 2016 had to the American separation of powers.

Works Cited

Berenson, Tessa. “Neil Gorsuch Confirmed: How His Nomination Changed Politics.” Time, Time, 7 Apr. 2017, time.com/4730746/neil-gorsuch-confirmed-supreme-court-year/.

“How Scalia Compared With Other Justices.” The New York Times, The New York Times, 13 Feb. 2016, www.nytimes.com/interactive/2016/02/13/us/how-long-does-it-take-to-confirm-a-supreme-court-nominee.html.

Primus, Richard. “The Supreme Court: The Nightmare Scenario.” POLITICO Magazine, 29 Mar. 2016, www.politico.com/magazine/story/2016/03/the-supreme-court-the-nightmare-scenario-213776.

“Supreme Court Justice.” American Law Yearbook 2016A Guide to the Year’s Major Legal Cases and Developments, Gale, 2017, pp. 208-212. Gale Virtual Reference Library, go.galegroup.com/ps/i.do?p=GVRL&sw=w&u=txshracd2598&v=2.1&id=GALE%7CCX3633800087&it=r&asid=2c6733a6ed017fe3cf7720b2457fb9fc. Accessed 15 Nov. 2017.