Matt McDaniel

6 minute read

Judges, generally, should not be subject to election. The philosophy behind insulating the judiciary from popularity votes is fairly straightforward: a judge who is weighing the merits of a case should not need to worry about his or her political future given the case’s outcome. Often, Judges have to make unpopular decisions in order to follow the law. We, as voters have ways to change laws that we don’t like through our elected representatives. There is no real reason to subject the judiciary to the constraints of popularity.

Of course, there are two counter-arguments to this point. First, subjecting judges to election has been a way to increase representation of women and minorities on local courts. Given that Courts, because of long-or-lifetime appointments, often mirror an older generation, many Court are/have been slow to diversify. Consequently, judicial elections allow for the public to accelerate change. The second rationale behind elections is to create a popular check on judges who voters may feel are otherwise “unaccountable.” You hear that term from both “conservatives” and “liberals” depending on how a Court rules on an issue.

Neither the diversity argument nor the “accountability” argument is incorrect as applied in individual circumstances. However, they appear exceptions to the general rule that we would not want our Judges’ interpretations of the law and the Constitution subject to “correction” by voters.

Mindful of this philosophy, we find ourselves at an interesting point in the 2016 election cycle. The death of Justice Antonin Scalia has created an immediate vacancy on the Supreme Court. Given that President Obama’s previous two selections: Justices Elena Kagan and Sonia Sotomayor have been cut from a similar ideological cloth as the President, there is considerable reluctance for the Republican-controlled Senate to allow the President to  shift the 5-4 ideological balance of the Court. The rationale is that, given that the President is in his last year in office, he should not have the opportunity to make lifetime appointments that, as we noted above, would impact the Court for years to come.

There is historical precedent for both allowing the President to make nominations in his final year and for rejecting the President’s attempts to push for a nominee’s confirmation. Expect to hear, at length, about examples of both in the coming weeks and months.

Here are a few scenarios to watch for during this election season:

  1. President Obama makes a hard-left nomination (think Loretta Lynch) and Republicans refuse to even entertain the nomination. Chuck Grassley (R-IA) chairs the Senate Judiciary Committee and, in consultation with Mitch McConnell (R-KY), the Majority Leader, can decide whether to set nomination hearings before the committee. Refusing to even entertain the President’s selection will likely send Democrats into apoplexy and drive huge fundraising efforts against the24 Republicans who are defending Senate seats in the Fall.
  2. The President makes a moderate-to-liberal appointment and nomination hearings are held, but the Senate votes on Party lines to deny nomination. This is probably the most likely scenario. The denial of a Supreme Court Justice is uncommon but not without many examples in recent memory. The denial of the President’s first choice will also mean that we are looking at a second pick in April or even May. At that point, the Republican leadership will be in a better position to say that the President should abide by the “tradition” not to make lifetime appointments in the summer/fall of his last year in office. Republicans will also have shown a “willingness” to do their constitutional duty and can just claim that the nominee was unfit (for whatever reason they elicit in the nomination hearings).
  3. Democrats look at the map and encourage Obama not to make a pick that could possibly get confirmed. With this logic, Democrats see themselves retaining the White House with Hillary Clinton and retaking the Senate. With this electoral math in mind, Democrats realize they could get an ideological purist appointed in January of 2017 rather than some consensus moderate (and, if Republican appointee Justice Souter was any indication of the possibility that a consensus moderate doesn’t always turn out the way the appointing president intends, Democrats may be right to hesitate here).

Expect that both sides of the political spectrum (and everyone in between) will weigh in on the political ramifications of putting off a Supreme Court nomination until the next President is elected. Certainly this reality benefits “establishment candidates” like Hillary Clinton, Jeb Bush, Marco Rubio, and John Kasich. While supporting an outsider may be cathartic, the question of “electability” takes on a new importance in the context of preserving/switching the ideological makeup of the Supreme Court.

In the looming fight over Justice Scalia’s replacement, we see clearly why we should not want judges, especially those on the Supreme Court to be subject to elections. Rather than looking at the majority of cases that come before the High Court that are not resolved 5-4, but rather decided unanimously or with a few dissenters, the fight would, like the fight over the Presidency, Senate, House, and every other elected office, become about the cultural issues du jour. While these issues are appropriate for discussion by legislators and executives, we would hope that our judges follow the Constitution, regardless of the whims of popular opinion.

The President is correct to say that he has a right and an obligation to make an appointment to the Supreme Court. Regardless of whether that appointment gets to a vote or whether the seat remains vacant for a year, there is no doubt that, barring a market collapse or a major terrorist attack, the vacancy and nomination will be one of the critical issues of the 2016 election. Consequently, even though there is no popular check on the Supreme Court, the 2016 election will be the closest the American people have come in a while to exercising that function (regardless of Obama’s actions).

If Senator McConnell ultimately decides not to have any vote on the President’s nominee, he effectively insulates the Republicans who are running for re-election in 2016. Like every election, 1/3 of the Senate chamber is up for election. Of those 33 seats, Republicans are defending in 24. In states like Illinois, Florida, New Hampshire, and Ohio, Republicans rode a wave of voter frustration with Obama into office in 2010. Now, the electoral map looks far less favorable to the GOP’s Senate prospects. Though McConnell’s scheduling a vote could protect the Senate, itself, from criticism about failing to do its duty and give the President the vote he desires, it would prevent these 24 Senators from going on the record and deliberately opposing the President in his Supreme Court fight (basically, preventing Democrat opponents from dragging out the votes to confirm a nominee to a lower Court that the Senator then voted against for the Supreme Court).

There is no way we can avoid the reality of Americans, in a sense, voting for a Supreme Court Justice in 2016. It would be prudent for voters to do their best to separate the issues revolving around the Presidency from the issues that would confront a Justice. However, expect to see the issues conflated for the next nine months until a President is chosen.

We should also be aware that, given the ages of the members of the High Court, and given that the new President will likely assume the Presidency with one spot to fill, the next President could be putting three or four Justices on the Court. While our judges are insulated from the voters, the leaders who appoint and confirm them are not.