Politics: The Extremists of Supreme Court Vacancies

Well, I had today’s post all planned, written, and ready to be published, but the announcement of Supreme Court justice Stephen Breyer’s retirement made me go back to following a rule that I have. You see, whenever there is a vacancy on the Supreme Court, I have to talk about it in the political section of one of my blogs. This blog was the next in line to be updated politically before I was going to get back to doing one in my Madam Secretary blog. Thus, I will be doing this topic in this blog instead of what I was doing until sometime after the vacancy is filled.

 

One can hope that without Republicans in control of the presidency or the senate that things can be better with the judicial process. Indeed, they started packing the courts during the end of the Obama administration by not confirming many of his nominees and then they have the audacity to accuse Democrats of wanting to pack the court. That’s the sad Republican motto: do the very things that you accuse your opponents of doing. Well, Republicans have many mottos, but when it comes to vacancies on the Supreme Court, they are more extreme now than they ever had been before.

 

Since the 1970s, there has been a conservative majority on the Supreme Court. Despite all of the other changes with who controlled the rest of government, it was quite clear to those that paid attention that it would likely be the conservatives in control of most of the highest decisions in the land and a majority would stick with whatever laws needed to be done.

 

Now this wasn’t always the case. There were notable moderates on the court. Indeed, there was a Democratic senate and a Republican presidency going on when Anthony Kennedy was confirmed to the Supreme Court during an election year. It might not have meant much at the time because the Republican president at the time, Ronald Reagan, was replaced by another Republican president. But it is worth noting what could happen if there is ever a Republican president and Democratic majority senate again.

 

But things got worse in terms of how the court would work. Despite being accused of sexual harassment, Clarence Thomas was confirmed to the Supreme Court and is now the longest tenured of all of the justices.

 

After the Supreme Court decided an election, it had the potential to taint any justice that we would see that president appoint. What people don’t point out regarding this is that despite the fact that Bush lost the popular vote the first time he was elected president, he did not put any justice on the court until after he won reelection with the popular vote.

 

During Obama’s term, it didn’t seem likely for a while that there would be any issues with the courts, be it the Supreme Court or any others. The votes for justices kept looking largely party line, though, with few people from the other party voting in favor of it.

 

But then it seemed like the Republican majority on the court was in serious danger. There was now a four to four split with Democrats getting their chance to finally reclaim a majority after decades without one.

 

Of course, Republicans couldn’t have this so they refused to hold hearing on this nominee. Then they went nuclear to ensure that they could put someone on the court. The extremeness which now became normal continued when Republicans jumped through hoops in order to say why someone accused of sexual assault shouldn’t have this moment of their matter. Then, they threw their own rule over election year vacancies into the garbage because they no longer got any benefit from it. They have no creditability after this.

 

What makes this even worse is that they have made the 2016, 2018, and 2020 elections all have the Supreme Court as a central issue to it. We don’t need that happening again. This might be why Stephen Breyer chose to retire now, even if the vacancy will be for later.

 

Still, this creates other issues and history worth remembering. Lyndon Johnson was wanting to put in people on the court before he left office, but the people he was wanting to replace never vacated their seats until after he was out of office. I think that there might have been some people nominated for them, but there either wasn’t any hearings or these people were voted down if there were hearings for them at all.

 

Thus, it was Richard Nixon who got to put people on the Supreme Court such as a new chief justice and plenty of other associate ones. It wouldn’t be until the Clinton administration that a Democrat would get to put someone new on the Supreme Court since Carter never got anyone on there. It was only due to flukes that some Republicans during this time wound up appointing liberal judges to the court.

 

What people should realize when it comes to nominations late in presidency is that there was a precedent made all the way back in the John Adams administration that should have been the set rule that happened from that moment forward. He had lost reelection yet was still able to put a justice on the Supreme Court. And it wasn’t just any justice. It was the chief justice.

 

Of course, Republicans are going to fluctuate and say whatever they want to in order to support their current beliefs especially if it contradicts a previous belief that they had. And things are always going to be bad if they have the senate. Thankfully, they don’t now. But they could get it again. This is why we need to somehow get this to end.

 

We need to remember some of what Lindsey Graham has said about the court as he has said a lot of contradictory things about this. He talked at the Kavanaugh hearings about how he felt that presidents should have their nominees voted on. He even mentioned the fact that he had voted for both Sonia Sotomayor and Elena Kagan. But he can’t be in favor of borking Merrick Garland as a Supreme Court nominee and try to claim this side still. And we all know that he turned on his own words being used against him in regards to the 2020 vacancy. This is what he had said in 2016:

 

I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say, “Lindsey Graham said, ‘Let’s let the next president, whoever it might be, make that nomination,’” and you could use my words against me, and you’d be absolutely right.

 

As Republicans continue to politicize the courts while making people believe that the Democrats are actually the ones doing this, we can only hope that this year’s vacancy can be better in the way it is handled. We can also hope that things can go back to normal if that’s even possible in some way, shape, or form. I doubt that it will, but we’ll see how this vacancy process goes.