A lot is being made on both sides of the political aisle of the future of the Supreme Court, and both major party candidates are prospectively expected to replace at least one or two Justices in their futures should they win the Presidency.
Although the next President will have a decision or two to make on the Supreme Court front, he or she has an important partner in that decision: the US Senate. And that, ladies and gentlemen, is where the Supreme Court can be won.
It’s a common perception that Presidents will pick Justices in line with the same political and ideological bent as the President picking them. That’s half true. When Democrats and Leftists get into power, they have no trouble picking similarly-minded people to fill vacancies. That’s how we got Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. (But more on that in a bit.)
When it comes to Republicans…the reverse tends to be true. Sure, you’ll get a conservative Justice once in a while, but more often than not, Republicans don’t get the conservative Justice they want and compromise on a moderate Justice.
That’s where the Senate comes into the equation. Under current interpretation of the Constitution, Supreme Court Justices undergo confirmation hearings where both sides do their best to malign or deify the nominee. When it comes to the Left, they bring their A games. When it comes to the Right, they bring their C- games. A lot of that has to do with who is in the Senate. There are few rock-ribbed conservatives in the Senate, and those who are usually aren’t on the Judiciary Committee. That plum of an assignment tends to go to party hacks who are more concerned about getting along than getting the job done.
Then, when it gets to the full Senate, the Republican party hacks get their surrender pants on and cave. Remember Robert Bork and Douglas Ginsburg? Remember the Clarence Thomas hearings? Now, remember the Kagan and Sotomayor hearings? Remember David Souter, Anthony Kennedy, and John Roberts and how they were more squishy than principled? The dance was different, but the song remained the same: the Left gets what it wants, while the Right gets to capitulate without getting any positive PR for it.
With the 2016 election, it’s important to consider what the head of each major party’s ticket will do for candidates further down the ballot. Republicans have to defend more Senate candidates, which may give Democrats a bit of an edge. A lot will depend on how the Democrats can make either Hillary Clinton or Bernie Sanders attractive to the Democrat base so their turnout is greater than the Republicans. If that happens, Democrats can take back the Senate and have a shot to take back the House.
On the other side, Republicans typically don’t need much of a reason to go out and vote. To them, it’s more of a duty than a task, and they take it very seriously. Having said that, Republican turnout has to at least match Democrat turnout for there to be any hope of holding the Senate. Then, it becomes a matter of which brand of conservatism holds the Senate. If it’s the conservatism of a Ted Cruz, then the next President will have a bit more spine. If it’s the conservatism of a Mitch McConnell, then a Jello spine it is!
Picking a President to nominate Supreme Court Justices is only half the battle. That President needs a Senate to uphold his or her ideological vision for the Supreme Court to truly change in a significant way.