Can Democrats replace Justice Ginsburg?
Supreme Court Justice Ruth Bader Ginsburg, in an Elle magazineinterview, announced she would not retire because, [Obama] could not successfully appoint anyone I would like to see on the court. So anybody who thinks that if I step down, Obama could appoint someone like me, theyre misguided.
Several commentators responded to Ginsburgs comment with skepticism. Harry Enten atFive Thirty Eightsaid, Consider me misguided. Chances are the Senate would approve a justice like Ginsburg.Vox.comsEzra Kleininsinuatesthat Ginsburg underestimates Democrats ability to alter Senate rules. These are all interesting pieces you should read if you have not already. But they are missing some critical points in the hypothetical scenario of replacing a Supreme Court justice.
Todays Senate politics are the result of a long, downward procedural spiral. Filibuster scholar Steven Smith calls it theSenate Syndrome. In recent years, minority parties have increasingly used procedural privileges to obstruct business. Majorities (from both parties) summarily responded with hardball tactics that increasingly exclude the minority party.
This is a relatively recent development. The Senates increasingly partisan process can be traced back to the very late 1980s/early 1990s, but really it has only recently begun to fully blossom in the last 15 years. The last decade of Senate politics is arguably the least cooperative, most partisan in its history. That is not to say past policy disagreements were not stark in previous generations. But todays obstruction and procedural hardball is unmatched.
This has several implications for Ginsburg or future Supreme Court nominees. First, the next Supreme Court confirmation fight will not be like the others. While confirmations have been made in this partisan environment (Justices Sotomayer, Kagan, Alito, and to a lesser extent Roberts), more recent nominees have faced morepartisan opposition. Comparing a Ginsburg replacement debate to any confirmation debate in the last 30 years doesnt really work. Very heavy-handed partisan tactics have become commonplace. Maneuvers such as routinely filling the amendment tree to prevent minority-sponsored amendments, using 60-vote thresholds to pass amendments (or better put, block unwanted amendments), and the ubiquity of the filibuster are just a few hallmarks of this very partisan Senate. Understanding the confirmations of past judges is helpful. But in all likelihood the next confirmation debate will be an entirely different animal.
The nuclear option, invoked last November, has complicated future confirmations. Majorities have yet to test the waters on a Supreme Court nomination since last years filibuster reform. It is entirely unclear how the minority will react. Senate Republicans retaliated after cloture was changed but only modestly. Republicans delayed votes, extended debate, and have generally refused to cooperate when Reid has tried to expedite executive and judicial confirmations. These delays have not been devastating; however, they are certainly an indication of how the minority has reacted to the nuclear option. They have slowed the process to the extent that they can. If they remain in the minority (which is not likely), they will not likely back down.
Such a response could have major consequences though. As Klein points out, violently reacting against a well-qualified candidate could spur further filibuster reforms and shut the minority out of all confirmations. He further argues this is a fundamental miscalculation on Ginsburgs part.
Despite the fact a precedent now exists to change the filibuster rules by a majority vote, this drastically oversimplifies the situation. Reforming a rule on the magnitude of cloture is no easy feat. Even if it requires only a majority vote, political support must be garnered and fought for. For example, the nuclear option was not a reform that simply came into being in November of 2013. In fact, some form of the rule change emerged as early as 2005. Rumors of reform again emerged in 2009, 2010, 2011, and 2012. Many were certain filibuster reform would occur on the firstdayof the 113thCongress. However, it wasnt until a year later that the nuclear option was actually used.
Google trends graph of filibuster rules searches.
The nuclear option took years to develop. It was not a simple flip of the switch. Many Democrats such as Sens. Joe Donnelly (D) of Indiana, Dianne Feinstein (D) of California, Mark Pryor (D) of Arkansas, Jack (D) of Rhode Island, and Carl Levin (D) of Michiganwere not convinced that going nuclear was a good idea. Reform-minded members had to convince their colleagues this change was necessary. This tookyears. And finally, even when the caucus was convinced of the need for reform, changes to Supreme Court confirmations wastoo much to stomach for many Democrats. Therefore, it is unlikely Democrats could simply change the rules again. That kind of move was too extreme for the majority to stomach last year and that likely hasnt changed to a significant in the time since.
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Can Democrats replace Justice Ginsburg?