Replacing Scalia: the Basic Math of Progress

With hard-line conservative Supreme Court Justice Antonin Scalia departed from the bench, President Obama has a rare opportunity – to appoint another liberal Justice to the bench, giving the Court a liberal majority.  There are four conservative justices left: Chief Justice John Roberts (appointed by George W. Bush), and Justices Anthony Kennedy (the last Reagan appointee; and at times a centrist rather than a true conservative), Clarence Thomas (appointed by George H.W. Bush), and Samuel Alito, Jr. (appointed by George W. Bush).  If the president were to get another liberal justice appointed, that justice would join Ruth Bader Ginsberg and Stephen Breyer (both Clinton appointees), and Sonia Sotomayor and Elena Kagan (both Obama appointees).  With five liberal justices, it is not unlikely that moderate Justice Kennedy might steer more toward the conservative side of the bench (being as he has a force of balance between the two sides); but a numerical majority of liberal justices would still be able to push litigation and judicial review significantly to the left of the Court’s recent performance.

For the president to get his third appointee on the bench, he has to select and vet a candidate.  Then the Senate would subject his candidate to review in what is likely to be a more than thorough screening under the direction of the Senate Judiciary Committee.  If the candidate is passed by the committee, the vote goes to the floor of the Senate for final approval.  The first problem obviously is that the Republican majority of the Senate gives them the majority in each of the committees, including specifically the Judiciary Committee (which currently has 11 Republicans and 9 Democrats).  As recalcitrant as the current rank of Republican Senators has been (and as uncooperative and openly hostile to the president specifically), it is optimistic to presume that the committee would value the president’s right to appoint a justice over their political objective of disenfranchising the left.  It is more optimistic to presume the floor of the Senate would be any friendlier to the president.

In fact, the Republicans are getting ready simply to block the president’s selection of a new justice for the remainder of his term, keeping at least a balance of equals between the conservative and liberal sides of the bench.  Senator Ted Cruz (R-TX), presidential candidate and a member of the Senate’s Judiciary Committee, has been leading the Republicans’ pre-emptive assault on the president’s constitutional prerogative to appoint Supreme Court justices.  Leftist petitions have been flooding the internet in the vain hopes of pushing the Republican Senators to reverse course entirely and actually follow the exact kind of popular calls for action that they have studiously ignored since taking the majority in 2015.  However, the math, and senatorial procedure, simply allow the Senate to sit on its constitutional prerogative of approving appointees for the remainder of the president’s term.

While that seems like bad news, this can also be very good news to Democrats.  Current electoral math suggests (not irrevocably, of course) that the Democrats are going to get large masses of new voters to the polls in November, and are going to get the White House on Inauguration Day in 2017.  Those large masses of new voters are also going to vote for one third of the Senators.  There are some 24 Republican senators, and 10 Democrats, up for re-election in 2016 (serving six-year terms, one third of the Senators are elected every two years; “Class 3” is the current rank up in 2016).  With 54 Republicans, 44 Democrats, and two Democratic-allied independents currently sitting in the Senate, to get a bare majority in the Senate in 2017 the Democrats need to re-elect all ten of their current “Class 3” senators, plus five more to take over Republican seats.  To beat the filibuster threshold (60 senators from the same caucus), the Democrats would need to take 14 seats from the 24 Republican senators up for re-election.  Incidentally, should Senator Sanders (I-VT) win the general election, the Democrats would need to fill that seat as well through another election; Senator Sanders is not up for re-election in 2016, so if he loses the nomination he gets to stay in the Senate for now.  Also, should some Democratic senators lose their seats, the Democrats would obviously need to unseat even larger numbers of Republican senators elsewhere.  Either way, the Democrats need five more seats in the Senate to gain a bare majority, and 14 more seats to beat the filibuster threshold.

If the Democrats do, indeed, push many new voters to the polls and beat the Republicans in doing so, they will also have the opportunity not just to keep their current senators, but also to unseat some of the 24 Republican senators up for re-election, and to gain a majority (possibly, but unlikely to include beating the filibuster threshold).  With a majority, the new Senate Majority Leader (perhaps Harry Reid, who held the post from 2007-15) would put together a new Judiciary Committee with a Democratic majority.  Under a new Democratic White House backed by a Democratic majority in the Senate, the President could appoint a far more liberal Justice than President Obama would ever be able to get through the current Senate, pushing the Court even further to the left.  As so many of the Republican strategies in recent years have backfired disastrously for the GOP, Cruz’s pre-emptive attack may also be the harbinger of a greater, more progressive America to come.  A more progressive Supreme Court could overturn its own recent Citizens United ruling, could reverse Scalia’s opinion on gun rights not being seated upon militia responsibilities, could find ways to restore some of the recently disemboweled Voting Rights Act, and could back ever more progressive legislation and presidential policy.  Senator Cruz’s pre-emptive attack could, under certain not yet guaranteed conditions, prove to be the greatest thing Democrats could hope for, and could show the Republicans why some things are best not wished for, let alone sought.

Headline image from The Atlantic, “A Closer Look at Confirmed Federal Judges,” (August 12, 2001), via Google Search.

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