Let’s begin with a few political facts. Presidential elections are held every four years. Senatorial elections are held every two. Supreme Court Justices are appointed for life (Article III of the Constitution actually provides that federal judges “shall hold their offices during good behavior” but this has become synonymous with life tenure). These terms of office were established by the Constitution and have not deviated since the nation’s inception. The Supreme Court currently has nine seats. This size was established in 1869 and has remained so ever since (although it wasn’t always this size and could be changed through legislation). November 8th 2016 marks the 58th Presidential election – an election according to Donald Trump that’s “all about the Supreme Court.” This significance is corroborated by both conservatives and liberals. So with the regularity of federal elections and consistency of political terms, why is this election any different from others?
The Supreme Court seat left vacant by Justice Scalia is still unfilled. Does this inherently make the election about the Supreme Court? Although quite an infrequent occurrence, this is not the first time that there has been a Supreme Court vacancy during a Presidential Election. Furthermore, Supreme Court nominations by lame-duck Presidents have routinely proceeded to Senate votes. As both parties corroborate, though, in this instance the ideological tilt of the Court potentially hangs in the balance. With a perennially gridlocked Congress, some portend the prospect or already see large-scale political decisions falling to the Supreme Court (Justice Thomas recently criticized this state of government as well as the ongoing Supreme Court vacancy).
This presents both a systematic flaw and a truism for those of us that follow the Supreme Court. On one hand, studies for over fifty years have shown systematic evidence of not only political decision-making by the Court, but that these decisions tend to support the incumbent political regime. On the other hand, since the nation’s founding and through modern day, many politicians and scholars have defined the Court’s design as purposed outside of politics. While this supposition is itself debatable, at least at a normative level, even a cursory look at the Supreme Court’s recent decisions evidences the Court’s role in political decisions.
So the Supreme Court may very well have a powerful influence on political decisions in the near and possibly far future. This much is clear. Some of the consequences are less so. One recurring theme, however, is the threat of a continued vacancy on the Court, especially if the Democrats win the election. Now if the Court was set to eight seats this would be a perfectly justifiable position. This, however, is not the current case.
The Court has mainly leaned conservatively (to varying degrees) since the last Democrat appointed Chief Justice, Earl Warren, left the Court at the end of the 1968 Term. With the transition to Chief Justice Burger and the appointment of Justice Blackmun to the Supreme Court, the Court has maintained a Republican-appointed majority since that time. The potential shift to a Democrat-appointed majority may be discomforting – to the extent that some have proposed leaving the current vacancy untouched indefinitely.
Part of a Bigger Question
The current Supreme Court vacancy speaks to a larger problem with the federal judiciary – that is, Congressional willingness to leave federal court seats vacant. These vacancies persist on all three levels of the federal judiciary (district, appellate, and Supreme). In fact, one of the Senators currently pushing for a prolonged the Supreme Court vacancy, Richard Burr, also touts his role in maintaining the longest current federal court vacancy which has persisted in his home state of North Carolina for over a decade.
Is the current Supreme Court vacancy symptomatic of a larger problem with the federal judiciary? Perhaps the same Congressional gridlock and partisan brinksmanship that affects the slow progress of legislation is also responsible for these prolonged judicial vacancies. Let’s take a look at the current state of federal judicial vacancies. As we stand there are 103 vacant seats in the federal judiciary including eighty in the federal district courts. This is between 1/8th and 1/9th of the entire federal judiciary left vacant.
These vacancies have increased dramatically in number since President Obama was elected into office. In November 2008, 36 federal court seats were vacant. Here is the current list of vacancies as well as pending nominees in cases where they exist. In addition to this list, the Office of the US Courts provides a list of judicial emergencies – a list that currently includes 38 unfilled judicial slots.
Over half of the vacancies have been ongoing for over 250 days. The chart below breaks down the count of vacancies by length for those that exceed the 250-day mark.
Granted, the spread of vacancies isn’t even across the nation. This is only natural since the size of each judicial circuit differs, yet the number of vacancies isn’t proportional to the sizes of the judicial districts (if they were than the 9th Circuit would top the rest). The chart below shows the breakdown of total appeals and district court vacancies by judicial circuit (this image breaks down the geography of the current judicial circuits).
Suffice it to say, the current problem with judicial vacancies goes well beyond the most public vacancy: that in the Supreme Court. The vacancies affect judicial business at all levels and are at least to some extent a product of Congressional gridlock.
So What ?
We are now 237 days into the Supreme Court vacancy (thank you SCOTUSBlog for maintaining a running calendar). The Supreme Court as well as lower federal courts are sparsely populated like no other time in history. With the lower courts, we see through the judicial emergencies list as well as the current courts’ workloads that the vacancies leave the courts in an untenable position. The Office of US Courts also provides deep dive into the abundance of work facing the federal judiciary.
At the Supreme Court level, the vacancy continues – a vacancy that has a toll on the Court’s case grants and decisions. It continues as overt partisanship is the driving force behind the Senate’s inaction over the current nominee. While it takes more than a few members of the Senate to block the vote, three Senators – Senators McCain, Cruz, and Burr – have been the most vocal obstructionists not only against voting on the current nominee but on voting on a nominee from a Democratic President moving forward.
For reasons given above this is a calculated effort to control the ideological direction of the Court. Senator McCain’s past actions help indicate that he is very much a numbers man. On his own website, he describes a similar logic with regards to defunding Obamacare:
“So, while I’ve always opposed Obamacare, the assertion that we Republicans could somehow defund it was false. The math is simple: We need 60 Republican votes in the U.S. Senate to defund Obamacare and 67 votes to overcome a certain veto by President Obama. Today, we have only 46 GOP senators. This was a fool’s errand doomed to failure, and I said so from the very beginning.”
In the case of the Supreme Court, however, the numbers work in the McCain’s favor; at least for now. This whole blockade on a vote may, however, merely be an exercise in the blind leading the blind. While Senator McCain previously staked his claim in this discussion, he has been recently reticent to discuss his position on the issue. Recall, this is the same Senator who mistook the Spanish President for a “Latin American” leader. Senators Cruz and Burr are not far behind. Cruz’s bizarre raw footage campaign ads leave open questions about his thought process and motivations. Then there’s Senator Burr who described and later backtracked on a comment about shooting Hillary Clinton. If these are the leaders of the campaign to stalemate any Democratically appointed nominee to the Supreme Court, should we not at very least hold this leadership accountable?
More editorializing than usual from @AdamSFeldman