2016 is About the Supreme Court, Stupid!

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If you could ask just one question to the candidates for President in 2016, it would be wise to ask about the criteria they will use to select a justice of Supreme Court.

While the 2013-2014 term of the United States Supreme Court had a record of unanimity not seen since the 1940’s, Justice Anthony Kennedy still holds the balance on some of the most controversial issues that face the Court. Kennedy turns 80 on July 23, 2016.

Hillary Clinton described her ideal justice, stating, “I will do everything I can to appoint Supreme Court justices who protect the right to vote and do not protect the right of billionaires to buy elections.” That might be an odd priority for the likely Democratic candidate considering that key issues like abortion, the Affordable Care Act, workers’ rights and gun control teeter on one vote.

Republican hopefuls Sen. Ted Cruz, Sen. Marco Rubio, and former Gov. Jeb Bush likely have very different litmus tests.  It would be safe to say that campaign finance is not one of them.

Because justices of the U.S. Supreme Court are appointed for life, vacancies on the U.S. Supreme Court are rare. Combined with the power wielded by the Court, the appointment process is a significant political event. While no current member of the Court has indicated any plan to step down, a vacancy could very well arise during the next several years.

Exactly how much power would the next President of the United States have in shaping the country’s highest court?

The Constitution requires the president to submit nominations to the Senate for its advice and consent. The “Appointments Clause” set forth in Article II, Section 2, Clause 2 specifically states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.”

As described by scholar Joseph P. Harris, the joint power is the result of a compromise reached during the Constitutional Convention between “one group of men [who] feared the abuse of the appointing power by the executive and favored appointments by the legislative body,” and “another group of more resolute men, eager to establish a strong national government with a vigorous administration, [who] favored the granting of the power of appointment to the President.”

Since the first Supreme Court justices were appointed in 1789, presidents have made 160 nominations for the Court, including those for chief justice. Of those, the Senate ultimately confirmed 124. While some of the rejected nominees were rejected during Senate votes, most were withdrawn or abandoned after the President recognized that their confirmation was unlikely.

For Presidents, nominating a Supreme Court Justice is an opportunity to continue their legacy long after they have left office. Of his nomination of John Marshall to the Court, President Adams stated, “My gift of John Marshall to the people of the United States was the proudest act of my life.” Chief Justice Marshall, whose most well-known opinions include seminal cases like Marbury v. Madison, is credited with solidifying the Supreme Court’s authority to interpret constitutional law, as well as its place as a co-equal branch of government.

The Senate also reveres its role in the appointment process. As Sen. Daniel P. Moynihan stated during the confirmation hearings for Justice Ruth Bader Ginsburg, “[The Senate] is perhaps most acutely attentive to its [advise and consent] duty when it considers a nominee to the Supreme Court. That this is so reflects not only the importance of our Nation’s highest tribunal but also our recognition that while Members of the Congress and Presidents come and go . . . , the tenure of a Supreme Court Justice can span generations.”

While the nomination of Supreme Court justices is a revered tradition, it is also a political process. Given the country’s current state of partisan polarization, the next President of the United States may have a hard time selecting a candidate that shares his or her ideological views, particularly if they are decidedly liberal or conservative. Like those before them, the ultimate nominee will likely be an excellent jurist whose views on significant constitutional issues tend to stay in the middle of the road.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

2016 is About the Supreme Court, Stupid!