(Rich Galen, Mullings) – There will be a ninth Supreme Court Justice this year.
Depending upon how the highly scripted dance plays out on the U.S. Senate stage (as well as in the Members’ offices, hearing rooms and the TV positions in the Senate Office Buildings) Judge Neil Gorsuch may get to hear his first case before the Court recesses for the summer.
Were it not for the sudden death of Conservative Associate Justice Antonin Scalia almost one year ago (February 13, 2016) the political argument over Supreme Court appointments would have had its usual soft-edged, theoretical aspect framed around the question, “What if a vacancy should occur?”
A vacancy did occur and did exist and when Republicans in the U.S. Senate refused to give President Barack Obama’s pick to fill the Scalia vacancy, Judge Merrick Garland, a hearing (much less a vote) that empty seat loomed larger and larger in the election for President.
The issue of whether Hillary Clinton or Donald Trump would choose the next member of the Supreme Court of the United States went from college coffee shop discussions to supermarket checkout lines.
Many of you – MANY of you – wrote to me to say that a Clinton choice or a Trump choice was the deciding factor in your vote.
And it wasn’t even close.
The thing about filling the Scalia seat with Judge Gorsuch is that it will not substantially alter the philosophical make-up: It will still lean toward Conservatives by a 5-4 margin.
Six of the eight currently sitting Justices were chosen in pairs by Barack Obama (Elena Kagan and Sonia Sotomayor), George W. Bush (Samuel Alito and Chief Justice of the United States John Roberts), Bill Clinton (Steven Breyer and Ruth Bader Ginsberg), George H.W. Bush (Clarence Thomas), and Ronald Reagan (Anthony Kennedy).
The three eldest are Ginsburg (83), Kennedy (80), and Breyer (78).
Two of those three are Clinton appointees. Kennedy is the Reagan appointee. Ginsburg and Breyer are dependable Liberal voters while Court-watchers have tapped Kennedy as the swing vote in 5-4 decisions.
The reason all that is important is because if Justices Ginsburg and/or Breyer leave the Court then President Trump will have the opportunity to change the makeup from 5-4 Conservative to Liberal, to 6-3 or even 7-2.
That would represent a huge difference in the types of cases the Court might consider and the decisions it might render; not just for President Trump’s four or eight years, but deep into the 21st Century.
It is easy to see how differently the Court would have tilted had Hillary Clinton won in November.
While Senate Democrats and cable news pundits whine and wail about Judge Garland, remember that Hillary Clinton went out of her way to say that if she won she was not committed to re-nominating him.
As late in the campaign as mid-September, Bloomberg reported that:
Clinton would “look broadly and widely for people who represent the diversity of our country” if she has the opportunity to make “any” Supreme Court nominations, she said in a radio interview.”
That was widely taken to mean that if President Hillary Clinton got the chance, she would pick younger, more Liberal judges than Merrick Garland. That was one of the reasons that there were suspicions that if she had won – and even if Republicans lost control of the Senate on January 3, 2017 – the GOP might bring Judge Garland up for a vote in the lame-duck session as the best deal they were likely to get.
We will never know how many Americans who voted for Trump would not have done so if the Scalia seat on the Supreme Court were not vacant. But it was and it was a glaring reflection of one of the oldest maxims in American politics:
Elections have consequences.
Mr. Galen is a veteran political strategist and communications consultant. He blogs at www.Mullings.com.