Politics Intrudes Upon the Court

By William Roberts

July 18, 2016

Ruth Bader GinsburgNow that the U.S. Supreme Court has completed its 2015–2016 term, politics has come to dominate the news from our least political branch.

Supreme Court Justice Ruth Bader Ginsburg apologized for her recent disparaging remarks about Republican Presidential Candidate Donald Trump.

"On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them," Ginsburg said in a statement issued by the Court.

Ginsburg had jumped into the rough and tumble of presidential politics recently with comments on Trump, who is poised to secure the Republican nomination for president at the GOP convention this week in Cleveland.

"I can't imagine what this place would be—I can't imagine what the country would be—with Donald Trump as our president," Ginsburg told The New York Times in an interview published July 10.

Trump retaliated, tweeting:

Donald Trump, Ginsburg Tweet

In the U.S. Senate, where President Obama nominee Merrick Garland's nomination to replace Justice Antonin Scalia is mired in Kentucky mud, Ginsburg's remarks drew rebukes from Republicans and mild scolding from Democrats.

Senate Majority Leader Mitch McConnell and other Senate Republicans have refused to consider Garland's nomination since March 16.

The White House's gambit had been that Garland's obvious qualifications and centrist record as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit would sway American public opinion. And it did—46 percent favored his confirmation in a Pew Research Center poll—but not enough to move the naysayers.

There's no chance Garland gets considered before the November election, Senator Dick Durbin, the No. 2 Democrat, recently acknowledged. But there's a possibility Garland can be confirmed in a lame-duck session. "If Hillary wins, perhaps McConnell will decide that's a better bargain," Durbin said.

Whoever the next president is, he or she is likely to have a chance to name three or four new justices. Ginsburg is 83. Anthony Kennedy will be 80 and Stephen Breyer will be 78 when the next president takes office. And then there's Scalia's empty seat.

It's quite possible that Clinton would choose to nominate her own choice if the Senate has not acted on Garland. Democrats are confident in victory though recent polls suggest Trump is gaining in the key battleground states of Pennsylvania, Florida, and Ohio.

"Republicans are going to lose their majority," Senate Democrat Leader Harry Reid has predicted. Republicans hold a 54–46 majority in the Senate.

At minimum, a loss of four seats and the White House would give control of a 50–50 Senate to the Democrats. They would still need Republican votes to confirm a Supreme Court justice.

"We will see what the election season holds or whether we end up with something totally different in January," Megan L. Brown, a partner at the law firm Wiley Rein LLP, said during a recent panel discussion on the Supreme Court organized by the Independent Women's Forum.

"Donald Trump made his list and I think there were some very commendable judges on it," Brown said. "It was a pretty mainstream, right-of-center Republican list. There weren't any big surprises there."

Scalia's legacy of textualist, originalist legal interpretation may well stand or fall with the election, said Susan E. Engel, a partner at Kirkland & Ellis LLP, who served as law clerk to Scalia in 2001.

"So the Supreme Court could end up with six liberal justices. That's a sea change. We have had a fairly conservative Supreme Court in my legal lifetime," Engel said during the panel discussion.

The polls are likely to tighten after Trump's GOP Convention in Cleveland, and after Clinton's Democratic Convention July 25–28 in Philadelphia. With four months to Election Day, anything could happen.