When the Supreme Court’s conservative Justice Antonin Scalia died unexpectedly over the weekend, setting up a major showdown between a Democratic president and a Republican Congress, a whole generation of political junkies raised on Aaron Sorkin’s The West Wing immediately saw a way to resolve the problem.
In the show’s fifth season, a conservative judge dies unexpectedly, and Senate Republicans push back hard against the possible appointment of a liberal to fill his position, leading to a complicated scheme in which clever White House staffers persuade a superannuated liberal justice to resign. That left the president free to appease conservatives with a pick that suits them, while installing a very liberal justice on the court as well.
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In the modern version of the deal, the natural choice for a justice to step down voluntarily would be 82-year-old two-time cancer survivor Ruth Bader Ginsburg. But just as nobody really talks like an Aaron Sorkin character, Washington doesn’t actually work like The West Wing.
Irin Carmon, co-author of Notorious RBG: The Life and Times of Ruth Bader Ginsburg dismissed the possibility of Ginsburg agreeing to such a deal with one pithy tweet:
— Irin Carmon (@irin) February 16, 2016
While it’s unlikely that the current standoff will be resolved through Sorkinesque legerdemain, it’s certainly not far-fetched to imagine a scenario in which a second vacancy suddenly materializes on the high court sometime over the coming year, as President Obama and Senate Republicans bicker over whether to act on a replacement for Scalia.
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With the death of the 79-year-old Scalia, the average age of the remaining eight justices is 69. The justices range in age from Ginsburg, 82, and Stephen G. Breyer, 77, on the liberal side, to Clarence Thomas, 67, Samuel A. Alito Jr., 66, and Chief Justice John Roberts, 61, on the conservative end of the bench.
Anthony M. Kennedy, the vital swing vote on the court who frequently casts decisive votes in cases that split the court’s liberals and conservatives, is 79 years old. The two youngest members of the court – and the most recent arrivals -- are liberals Sonia Sotomayor, 61, and Elena Kagan, just 55.
While it is impossible to anticipate who might be the next to step down because of age or illness, Ginsburg has speculated publicly about how much longer she would remain on the bench because of her advanced age and health issues. Nominated by President Bill Clinton in 1992, Ginsburg has survived two cancer diagnoses – colon cancer in 1999 and pancreatic cancer in 2009. She was back in the hospital in 2014 to have a stent placed in her right coronary artery.
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She suggested two years ago that she might retire in 2015, after matching the court tenure of the legendary Justice Louis Brandeis, but then chose to remain on the bench to uphold the liberal side of the court.
Breyer underwent shoulder replacement surgery in April 2013, after a freak bicycle spill, but is otherwise healthy.
Chief Justice John Roberts was hospitalized in July 2007 after suffering a seizure at his summer home in Maine. The episode was described by a court spokesperson as a “benign idiopathic seizure” and was similar to one he had suffered 14 years earlier. He suffered no lasting damage.
Kennedy was hospitalized in 2006 complaining of chest pains and had a stent inserted in a coronary artery. Others likely have experienced health problems that received little if any attention.
Should anything happen to make one of the current justices unable to serve, it wouldn’t be unprecedented. But the precedent isn’t a good one.
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The only time there were two simultaneous vacancies on the court was in 1844, under President John Tyler. This came about for a number of reasons with parallels to the current situation. The Senate’s Whig majority hoped that Henry Clay, the Whig candidate for president, would be able to fill the seats. Clay lost the 1844 election, however, and Tyler, who would eventually serve in the Confederate States’ House of Representatives during the Civil War, filled one of the vacancies shortly before leaving office in 1845. The other seat was filled by his successor, James Polk, in 1846.
The prospect of another empty seat on the court would raise the stakes dramatically for a court that is widely regarded as roughly balanced, sharply changing the calculus for Republicans in Congress.
Right now, the GOP is pushing a delay in confirming a new justice on the hope that a Republican president is elected in November, which would allow the appointment of another strong conservative, assuming the party also retains control of the Senate.
But that’s a gamble. If a Democratic president is elected, regardless of whether the Senate changes hands, there will be widespread public perception that the new president has been given a mandate that includes the appointment of a Supreme Court justice of his or her choice.
And if there were to be a second vacancy between now and then, depending on which of the justices left the bench, one of two things could happen. It would either solidify the liberal wing’s control of the court if an older liberal were replaced by a younger one, or it would virtually ensure domination of the court by liberals for the foreseeable future if a conservative were replaced by a liberal.
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The situation cuts both ways, of course. The same argument could be made from the conservative side. Holding off on replacing Scalia until a Republican takes office could ensure that the balance on the court remains as it is. An unexpected vacancy would either shore up or increase the conservative majority, depending on which current justice departed.
The speculation, morbid though it may be at times, is no doubt the subject of serious discussion among the leaders of both parties in an election year.
An election year that has seen insurgent candidates in both parties overturn conventional wisdom just makes the future murkier.
Republicans have to consider whether it’s a better idea to confirm a moderate appointed by Obama, or face a Democrat-controlled Senate approving Bernie Sanders’ Supreme Court nominees. Democrats have to decide whether consenting to a nominee who is less than perfect ideologically now is preferable to potentially watching a GOP-controlled Senate approve multiple justices nominated by ultra-conservative President Ted Cruz.
