Thinking Past Trump: Senate Races and the Supreme Court


by Tajin Rogers

This year’s election cycle has seen an outsized media focus on the presidential campaign—and understandably so, given the stakes of the race. But there are, of course, other important electoral contests this year. With Democrats looking poised to take the seats of Republican incumbents in Wisconsin and Illinois, and with the possibility of winning currently Republican-held seats in Indiana, Pennsylvania, and New Hampshire, the control of the Senate seems to be very much still in the balance.

In the minds of many, most of the issues that could face the next Senate have been dwarfed by the presidential race. But one, at least, should still hold some weight: the Supreme Court appointments that await the next president. With Scalia’s seat still to be filled, with Ginsburg having openly made suggestions that she’ll retire when an adequate replacement can be found, and with Justices Breyer and Kennedy at ages 78 and 80, respectively, the appointments over the next 4 years will have a long legacy. Even if the Democrats retain the executive office, they’ll need support in the Senate for any confirmations. The threshold for Supreme Court confirmations in the Senate still stands at 60, requiring at least some Republicans to cross the aisle to confirm a Democratic nominee. This looks unlikely, given how Republican leadership seems to be entrenching: on an October 17th interview with a Philadelphia radio program, John McCain (R-AZ) declared that “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.”

However, some have suggested that, if the Democrats reach 50 seats (a majority, when the Vice President is factored into Senate votes), Harry Reid (D-NV) and the Democratic leadership may be inclined to “nuke” the Senate rules for Supreme Court confirmations by lowering the 60-vote threshold to the 50 votes that they would have in the bag. While this was done for other presidential appointments in 2013, there would be no precedent for such a drastic rules change with regard to the Supreme Court—while the threshold for cloture was lowered from 67 to 60 in 1975, it’s never been lower than the current 60. In short, the nuclear option would allow the future of the Supreme Court to be controlled by narrower Senatorial margins than it ever has been. Reactions from Senate Republicans would likely be apoplectic, although according to the nature of the procedure, they wouldn’t be able to do much about it.

This option is far from a certainty, though—Democratic Senators from riskier seats, like Joe Manchin (D-WV), who voted against the 2013 rules change, may not want to take such action, and Chuck Schumer (D-NY), when asked in March, replied that he was “not even thinking about that at this point.” But it’s certainly something Republicans fear: back in March, Chuck Grassley (R- IA) was quoted in Politico as saying “if they got the majority, I think they would do it”—and after this year’s norm-shattering presidential race, who knows what might happen.

Of course, in a Trump presidency, the outcomes would be horrific (although at that point the Supreme Court may be far down the list of our worries). The names that Trump has put forth as his potential nominees is a list of more conventionally conservative, but nonetheless hard-right judges, many of whom are young enough that they could stay on the court for years. Before the death of Scalia, the court had been one of the most conservative in the last century—additional nominees from the right would shift the balance disastrously.

The importance of the Supreme Court goes almost without saying. Despite being a fairly centrist institution, and one that, due to its structure, moves slowly and incrementally, it’s the branch of our government that has the final say on most major issues. The Left, of course, must work for change outside of the structures of the state—although even electoral victories in non-presidential cycles would be nice. There is also a vast amount of work to be done at the state and local level, where a new generation of activists disappointed in the centrism of the national Democratic Party can make an impact. Still, rather than waiting idly for a top-to-bottom revolution that may not come anytime soon, the slow progress that we’ve seen (in some areas) from the Supreme Court in the past few years—Obergefell being perhaps the most tangible and visible, but including a victory against hiring discrimination in EEOC vs. Abercrombie and a victory by status quo (if you can call it such) in Friedrichs vs. California Teachers Ass’n—should be welcomed and fought for. And that means voting down-ballot come November, where the fight for next decade of the Supreme Court (or more) very well may play out.

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