The Case of the Gradually Disappearing Supreme Court

Could the battles over Supreme Court nominations become so acrimonious that it becomes impossible for anyone to win Senate confirmation?

July 1, 2008—With the retirement of 88-year-old Justice John Paul Stevens today, the Supreme Court's membership dwindled to four. The remaining two liberals (Stephen Breyer and David Souter) and two conservatives (Antonin Scalia and Clarence Thomas) are almost certain to deadlock on big issues including abortion, affirmative action, gay rights, religion, and presidential war powers. So any tie-breaking replacement for Stevens would be in a position to rewrite vast areas of constitutional law.

This, in turn, almost guarantees that no nominee in the foreseeable future will have much chance of getting past the Senate filibusters that have blocked all eight of the men and women named by the president since the retirements in 2005 of Chief Justice William Rehnquist and Justice Sandra Day O'Connor, at the ages of 80 and 75, and the retirements in 2007 of Justices Ruth Bader Ginsburg and Anthony Kennedy, at the ages of 74 and 71.

No matter who wins the 2008 presidential election, the Senate is once again likely to be so closely divided that senators in the opposing party will easily muster the 41 votes to sustain a filibuster against any nominee who does not pass their litmus tests. And any nominee who can pass the Democratic test would fail the Republican test, and vice versa.

Indeed, experts say it's conceivable that the Court's membership could eventually shrink to zero, unless and until one party or the other can muster a decisive Senate majority. (The Court would already be out of business had it not reduced the quorum required by its rules from six to five last year and then to four this year.) Whoever wins the 2008 presidential election will once again be under enormous pressure to pick nominees acceptable to his political base—and doomed to be blocked by filibusters—rather than seek a deal with opposition senators to break the logjam.

Some even speak of a slow-motion Supreme Court suicide over the past five or six decades. By steadily aggrandizing their own powers, both liberal and conservative justices have made the Court into a wide-ranging superlegislature, imposing on the nation the personal political preferences of whichever group can get five votes in the guise of construing the Constitution. This in turn has transformed Senate confirmation battles into plebiscites on the nation's most-divisive issues, almost as consequential and bitterly contested as presidential elections. It has made increasingly anachronistic the traditional refusal of nominees—now seen as mere candidates for political office—to discuss their views. It has galvanized conservative and liberal activists alike to attack any nominee who fails their tests of ideological purity. And when combined with the Senate's deep partisan split and the legitimization of the filibuster as a device to block any nominee who falls shy of 6! 0 votes, these trends have produced a stalemate that may threaten the Court's very existence.

The downward spiral of partisan bickering over judicial nominees is rooted in the conservative backlash against the Warren Court's well-intentioned assumption of vast and unprecedented powers to expand criminal defendants' rights, take over school districts in pursuit of desegregation, redraw election districts, ban school prayer, and more. Richard Nixon, Ronald Reagan, and George W. Bush all campaigned on vows to put more conservative judges on the bench.

They were only partly successful. Nixon put the conservative Rehnquist and Chief Justice Warren Burger on the Court. But he also chose Justice Harry Blackmun, who wrote Roe v. Wade in 1973 and had become the most liberal justice by the time he retired in 1994, and the more moderate Lewis Powell, who voted with the liberals on abortion, affirmative action, and religion. Stevens, a Gerald Ford appointee, also ended up in the liberal bloc. And President Carter stocked lower courts with liberals.

Reagan's first Supreme Court appointee, the ideologically amorphous Sandra Day O'Connor in 1981, ended up voting much like Powell. Reagan did make the Court more conservative by elevating Rehnquist to chief justice and appointing the conservative Scalia in 1986. But Reagan's 1987 bid to push the Court decisively to the right, by choosing conservative crusader Robert Bork to succeed Powell, provoked a titanic confirmation battle that ended in a 58-42 defeat by the newly Democratic Senate. In the process, Senate Democrats made "to Bork" a verb and set a precedent for opposing even eminently qualified nominees solely (or at least primarily) because of political disagreements with their philosophies. Reagan ended up appointing a more moderate judge, Kennedy, who ended up joining O'Connor—and the liberals—on big social issues including abortion rights, religion, and gay rights.

Similarly, while the first President Bush pushed the Court to the right by choosing the fervently conservative Thomas in 1991, he had inadvertently pushed it to the left the previous year with his first appointee, Souter. Picked because he had no publicly expressed views to galvanize opposition, this "stealth nominee" proved to be solidly liberal. And when Souter joined Kennedy and O'Connor in a 1992 opinion that largely reaffirmed Roe v. Wade, bitterly disappointed conservatives vowed that there would be "no more Souters."

President Clinton, uninterested in spending political capital to mold the courts, chose moderately liberal judges Ginsburg and Breyer. But this did not stop Republicans from escalating the judicial wars during Clinton's second term by using their control of the Senate and various stalling tactics to block many qualified lower-court nominees who would have been confirmed in up-or-down votes.

Meanwhile, during the 1990s, the more conservative justices (often joined by O'Connor and Kennedy) became increasingly aggressive in striking down civil-rights provisions and other acts of Congress based on constitutionally questionable notions of states' rights. This in turn fueled a liberal backlash against "right-wing judicial activism."

The second President Bush touched off a bitter, protracted battle with Senate Democrats—who were spoiling for revenge—by choosing strongly conservative nominees for federal appellate vacancies, many of which would previously have been filled by Clinton nominees but for Republican obstructionism. The Democrats' loss of Senate control in 2002 left them with only one blocking tactic: the filibuster, which had never before been systematically used to block, on ideological grounds, nominees who would otherwise have been confirmed. And filibuster they did.

In the 2004 campaign, with the Supreme Court closely balanced on issues including racial preferences, gay rights, abortion rights, and religion, Bush and John Kerry were implored by their conservative and liberal bases to pledge to put on the Court only people who had publicly espoused views rejecting (in Bush's case) or embracing (in Kerry's case) Roe v. Wade. By the campaign's closing weeks, each candidate had come very close to doing just that. Even moderate centrists, and Souter-like "stealth" candidates, were off-limits and, in any event, unconfirmable, because conservative and liberal groups were determined to avoid the kind of surprises that Blackmun, Stevens, O'Connor, Kennedy, and Souter had given Republicans.

The winner of the 2004 election was thus committed to choosing nominees who were sure to be blocked by filibusters. And the widespread assumption that a Hispanic nominee could skate through because of the opposition party's fear of offending a key voting bloc proved incorrect. By the time ideological opponents had finished trashing every controversial aspect of every nominee's record, in multimillion-dollar ad campaigns featuring distortions and denunciations by various Hispanic "leaders," Hispanic voters were so split and confused that opponents felt safe to filibuster.

This made almost inevitable the filibusters in 2005 of the first two nominees to replace Rehnquist and O'Connor, and then of the second two. Nor was it a great surprise when the president—vowing never to "knuckle under" on a "core presidential prerogative"—spurned proposed trades in which the Senate would confirm one nominee of his choosing and another picked by the other party.

This uncompromising stance kept the president's political base happy. It also had the not-unwelcome side effect of insulating from any further Supreme Court second-guessing the president's claims of vastly expanded power to override the Bill of Rights and congressional constraints in the name of the war against terrorism. Since the Court began shrinking—to seven members in 2005, five in 2007, and now a stalemated four—both its prestige and its will to take on a wartime president have diminished. "I can't say I miss them much," the president has reportedly said of the departed justices.

So at a time when we desperately need a judicial check on executive power, the justices—with a push from the president and the Senate—may have taken themselves out of the game.