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High court nominations will never be the same

Editor’s note: Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Capitol Report or Bloomberg LP.

The story of the Supreme Court in 2016 can be summarized in a statistic: It’s been 311 days since Justice Antonin Scalia died on Feb. 13, and his seat remains unfilled. That’s not the longest Supreme Court vacancy in the modern era, but it’s about to enter second place — and it will become the longest if Donald Trump’s nominee isn’t confirmed before the end of March.

This striking fact will be front and center when the history of the court in 2016 is written. But what really matters isn’t the length of the vacancy. It’s the election in the middle of it. The Republican Senate changed the rules of confirmation drastically by refusing even to consider Judge Merrick Garland’s nomination. And against the odds, it paid off for them.

The history of the confirmation process is central to the history of the court. There have been some important landmarks in the last century. Louis Brandeis was the first justice to have a confirmation hearing. Felix Frankfurter was the first justice who had to testify at his confirmation. (Ten points if you can spot the not-coincidental reason they both got extra scrutiny from the Senate.)

More recently, the confirmation process for Robert Bork in 1987 had epochal consequences. For the first time, judicial philosophy was the focus. No one disputed Bork’s intelligence or qualifications. Instead liberals, including law professors like my colleague Laurence Tribe, criticized Bork’s conservatism as opposition to fundamental rights.

It worked. The Senate rejected Bork’s nomination, 58-42. Anthony Kennedy got the seat instead. That has mattered vastly for the court’s trajectory. In a real sense, Tribe and then-Sen. Joe Biden deserve much of the credit for Kennedy’s landmark liberal decisions on abortion, Guantanamo and gay rights, to name just the most salient.

One consequence of the borking of Robert Bork was that no intellectual, activist judge has been named to the court since — liberal or conservative. The closest is Ruth Bader Ginsburg, who had a record as a professor and the leading women’s rights litigator before the Supreme Court. The other post-Bork justices are either pragmatists (Justices Stephen Breyer, John Roberts and Elena Kagan) or, if they are more ideological, managed to hide it before confirmation (Justices Clarence Thomas, Samuel Alito and Sonia Sotomayor).

Perhaps most tragically — or fittingly, if you’re a conservative — Tribe himself was never nominated, despite being by consensus the leading liberal constitutional law-professor/public intellectual of his generation. The liberal Robert Bork, if you will, had no chance of confirmation, because of the precedent he set with the Bork hearings.

As it turned out, that also meant that Tribe’s generational successor in that role, Cass Sunstein (another colleague of mine, both at Harvard Law and here at Bloomberg View), also had little chance of being nominated, despite being much more centrist than Tribe and just as qualified in his own right. The rules of the game had changed.

The Garland refusal marks the next era-defining change in the nomination process. Now it isn’t even about the nominee — just the president’s party. Garland was, and remains, archetypally confirmable. A non-ideological moderate, he was confirmed 76-23 to the D.C. Circuit, with plenty of Republican votes.

By blocking Garland, the Republicans gambled that the cost of a tacit “no” wouldn’t harm their party, even if they lost the presidency. That gamble resembled the Democrats’ gamble over Bork. As it turned out, the Senate Republicans got lucky when Donald Trump was elected. Now their intransigence looked in retrospect like political genius.

The consequences will be major. Had Garland replaced Scalia, liberals would have had a majority on the court that would have persisted even if Ginsburg, Kennedy or Breyer had retired or died during a Trump presidency. Instead, the court will hold at 5-4 (counting Kennedy as a liberal). If any of those three doesn’t last until 2021, the court will turn. If two or more retire, the court may be conservative for decades to come.

Like the Bork nomination, this historic shift in the confirmation process will create a new norm. The Senate will confirm Supreme Court appointees only if the president and the Senate majority are of the same party.

Imagine the scenario, unlikely as it may seem, in which the Democrats win the Senate in November 2018. Would they confirm a Trump nominee to the court in 2019, two years before the next presidential election? Given the Garland precedent, I seriously doubt it. The political price might be negligible. And the benefit could be enormous.

You watched it happen, folks. The year 2016 brought a sea change in how justices are chosen. The results will be with us for many years to come.

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