Elections

Would blocking Supreme Court judges unleash constitutional confusion?

A handful of Republican senators are preemptively threatening to block Hillary Clinton’s judicial nominees, if she’s elected president. Here, a crowd is pictured gathered outside the Supreme Court in Washington, D.C., on March 4, 2015, as the court hears arguments in King v. Burwell, a major test of President Barack Obama's health overhaul.
A handful of Republican senators are preemptively threatening to block Hillary Clinton’s judicial nominees, if she’s elected president. Here, a crowd is pictured gathered outside the Supreme Court in Washington, D.C., on March 4, 2015, as the court hears arguments in King v. Burwell, a major test of President Barack Obama's health overhaul. AP

Some Republicans say if Hillary Clinton becomes president, they’re prepared to leave one or more Supreme Court seats vacant long-term – a political maneuver that could result in Americans living under a variety of legal decisions and uncertain about their fundamental constitutional rights, law experts say.

North Carolina’s U.S. Sen. Richard Burr this week became the latest to pledge he’ll stonewall Clinton’s nominee for the current Supreme Court vacancy if she beats Donald Trump.

If Hillary becomes president, I’m going to do everything I can do to make sure that four years from now, we’re still going to have an opening on the Supreme Court.

U.S. Sen. Richard Burr, R-N.C.

A Republican-controlled Senate next year could block judicial nominees and leave the court with eight justices, or fewer if more leave the bench. (Justice Antonin Scalia died earlier this year, leaving his position unfilled. Nominee Merrick Garland has not had a confirmation hearing.) Some legal experts fear this undermines the high court’s role in resolving differences when lower federal courts rule in contradictory ways.

“The Constitution really shouldn’t mean different things in different parts of the country,” said Pamela Karlan, a former U.S. Department of Justice official and Stanford University law professor.

An even number of Supreme Court justices, she said, increases the likelihood the Supreme Court will decline to hear cases or split 4-4 in a decision. The legal term for what happens next is called “affirmed by an equally divided court.”

When that happens, the lower court decision stays in place. In the lower courts, there’s often competing judicial rulings on a single legal issue, Karlan said.

For example, she said, she was an attorney on a federal case 10 years ago about whether a person’s IRA retirement savings should be protected from creditors if they declare personal bankruptcy. The issue went to the Supreme Court when there was disagreement across three lower federal courts.

Without the Supreme Court decision in cases like this and others, the country’s 13 appellate courts and state superior courts would have the final word – but the last legal word in those cases could look very different across states. This could cause uncertainty, Karlan said, for businesses that operate in several jurisdictions and families who move or travel.

The Supreme Court’s authority and function is critical to ensure constitutional rights are uniformly recognized and that federal law is consistently applied across state lines, Karlan said. The issues the Supreme Court weighs in on are hefty and far-reaching: Recent major court decisions have affected voting and labor laws, healthcare and insurance, same-sex marriage and abortion access, affirmative action in college admissions and campaign finance regulations.

This is going down a very dangerous road. ... It means that the same issue can be decided differently in different parts of the nation.

Neil Siegel, former Supreme Court clerk

“Do we really want a system in which the head of one of our three branches of government is rendered dysfunctional?” asked Neil Siegel, law professor at Duke University and former clerk to Supreme Court Justice Ruth Bader Ginsburg.

“Over the long term it serves us very well to have a fully-functioning, fully-staffed Supreme Court. This is going down a very dangerous road,” he said. “It means that the same issue can be decided differently in different parts of the nation.”

But some Republican senators such as Burr, John McCain of Arizona and Ted Cruz of Texas warn of a different danger: activist liberal judges.

Burr told a group of supporters in North Carolina recently, “If Hillary becomes president, I’m going to do everything I can do to make sure that four years from now, we’re still going to have an opening on the Supreme Court.” On Tuesday, in a statement to McClatchy, he said Clinton “has a long history of backing liberal judges.”

Burr amended his earlier comments somewhat, saying in the statement that he would “assess the record of any Supreme Court nominee,” but that he had doubts Clinton could put up someone he would support.

“I will reject any candidate whose record indicates they will use the court to put in place their personal or political agenda, or who will not rule in accordance with law and the Constitution,” Burr said in the statement.

A preemptive statement to block a presidential nominee’s Supreme Court picks would have been shocking a few years ago, Siegel said. That many voters aren’t shocked by such statements “shows how low expectations are for governance,” he said.

“It would be unprecedented to have a court with nine seats and having one – or maybe two or three – going unoccupied (for years) because of opposition across the board,” Siegel said. “You shouldn’t use the court as a political football in this way.”

Some Republican senators began signaling weeks ago they would take a hard line against Clinton judicial picks if she beats Donald Trump.

“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up,” McCain said on Oct. 17 in a radio interview while campaigning for Pennsylvania Republican Sen. Pat Toomey.

When some Republicans senators earlier this year dug in and blocked President Barack Obama’s nominee, Garland, to the Supreme Court, they reasoned that voters should have a say in the court makeup through the Nov. 8 election, Siegel said.

Now, he said, it seems committing to blocking Clinton’s potential nominees is like saying, “If we don’t like how the American people speak, then we’re simply going to not let their voice be heard.”

Alex Daugherty contributed.

Anna Douglas: 202-383-6012, @ADouglasNews

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