Grand Theft Judiciary: How Republicans Stole the Supreme Court

Pray that Ruth Bader Ginsburg and her fellow liberal justices stay healthy and don't retire

The Supreme Court currently has eight justices, after Republicans obstructed President Obama's nominee, Merrick Garland. Credit: Zach Gibson/Getty

The Republicans just pulled off one of the greatest heists in American political history – they stole a Supreme Court justice.

Since 1789, there have been 112 justices on the Supreme Court. Having the opportunity to appoint a new justice is one of the prize opportunities for a president. With the right young justice, a president can influence American law and society for decades to come. For instance, Anthony Kennedy, the current "swing justice" on the Court, was appointed by President Reagan. Since he sits in the ideological middle of this current court, Kennedy's views on the law often determine how American justice works. And for that, we owe thanks to a president who was last elected 32 years ago and has been dead since 2004. That's the power of a Supreme Court appointment.

These opportunities are often completely unpredictable. Justices are appointed for life, so they leave their position only when they retire or die. Sure, a president can make an educated guess about particular justices' life expectancies or end-of-career plans, but knowing exactly when a justice is going to leave the Court is out of the president's control.

When Justice Scalia died suddenly in February, President Obama was gifted the opportunity to fill his third seat on the Court. He had previously replaced David Souter with Sonia Sotomayor and John Paul Stevens with Elena Kagan. Neither of those appointments shifted the Court's ideological balance, as in each case Obama replaced, broadly speaking, a judicial liberal with another liberal. Replacing Scalia, on the other hand, was going to be a monumental shift in the Court. Scalia was one of the most conservative justices in the history of the Supreme Court. An Obama replacement would give the Court its fifth liberal and shift it to the left in historically significant ways. President Obama and Democrats were salivating at the opportunity.

The Republicans, though, were having none of it. Through unflinching and unified obstructionism combined with Tuesday's election of Donald Trump, they succeeded in stealing the seat right out from under President Obama's nose. It was a staggering case of grand theft judiciary.

This all started almost immediately after Scalia's death, with the Republicans claiming a new theory that a president should not be able to appoint a justice during an election year; rather, the people should be allowed to speak and decide on the direction of the Court, they said. Never mind that justices have been confirmed regularly throughout history in election years, and that presidents have constitutional authority to appoint judges to the federal judiciary in all four years of their term, not just their first three, and that the Court would have to (and continues to) function with only eight justices. The Republicans understood the stakes of shifting the Court's ideology, so they put up a united obstructionist front and never wavered in saying they would not confirm an Obama appointee this year.

President Obama, as he often does, thought he could break through the Republican wall by trying to appease them. Instead of nominating a young liberal firebrand or a judicial first, he nominated a well-respected but moderate, not-young white male: Merrick Garland. Obama thought Garland, who had been praised throughout his career by politicians on both sides of the aisle, would be unobjectionable and would break the logjam.

The president couldn't have been more wrong. Without any interest group to cheerlead his cause, Garland was quickly forgotten and faded into the distant background of American politics. As a result, there was no movement whatsoever, and Garland's nomination has lingered with no action longer than for any nominee in history.

During the campaign, Democrats occasionally brought up this issue, trying to paint Republican senators as obstructionist and against good government. But the issue never stuck in Senate races, and Hillary Clinton never really led the charge over the Supreme Court either. As a result, according to an ABC exit poll, of the 21 percent of Americans who said the Supreme Court was the most important factor in their vote, 57 percent of them voted for Trump and only 40 percent voted for Clinton.

Now that Trump is president-elect, he's going to have the opportunity to fill Justice Scalia's seat; even though it means the Supreme Court will remain short-handed for months longer, there's no chance in hell Republicans will do anything to move Garland's nomination between now and inauguration day. They want their stolen prize, and they'll wait for it.

Trump has given a list of 21 possible justices he would nominate, all of whom have varying pedigrees as conservatives. If he follows through and nominates someone from that list, the Democrats could respond with a similar blockade. Though the Republicans will still control the Senate, and thus would be able to move the nominee through the judiciary committee to a floor vote, the Democrats could try to filibuster. A filibuster requires 60 votes to break, so the 52 Republicans in the Senate would not be able to stop it.

There are two problems with this plan, though. First, Democrats have been less unified in the past when it comes to opposition than the Republicans have been, and the Democrats would need to make sure no more than seven senators broke ranks. With several Dems up for reelection in 2018 in very conservative states, that's something that may be more difficult than it should be.

Second, the Republicans may opt to get rid of the filibuster altogether. This option, commonly referred to as the "nuclear option," would eliminate the filibuster as a tool for Supreme Court nominees. Because of Republican opposition during the Obama years, the Democrats eliminated the filibuster for lower court judges when they controlled the Senate. However, they kept it for Supreme Court nominations because they understood just how controversial and serious such a move would be.

I have no expectation that the Republicans would do the same. They have been laser focused on wresting this nomination away from President Obama and are not going to let the Democrats ruin their fun. The Senate rules allow the filibuster to be eliminated with a majority vote, and the Republicans will probably do so very soon after Trump nominates his justice and the Democrats announce their filibuster.

What will this mean for the Supreme Court? Filling this seat will put a younger conservative in Justice Scalia's seat. It will dash liberals' hope of a new progressive Supreme Court and likely continue its recent history as one of, if not the most, conservative Courts in American history.

However, the Court will still have Justice Kennedy as the swing justice. Kennedy is conservative, no doubt, but he has cast important votes for abortion rights, affirmative action and gay rights – votes that have changed the face of this country and protected basic constitutional rights. Even with a Trump appointee in place, the Court would not lurch hard right.

That would happen, however, if one of the three older justices on the Court retired or died. Ruth Bader Ginsburg is 83, Kennedy is 80 and Stephen Breyer is 78; actuarial tables do not favor them being on the Court much longer. Whether that means they will leave over the next four years, no one knows.

What we do know is that liberals will be going to bed every night during those years praying, lighting incense or otherwise thinking good thoughts for the three of them. Because if President Trump has the opportunity to replace any of those three justices, the Supreme Court will likely make that hard-right lurch, and it will be severe. If he fills one of those seats with a steady young conservative, there will be a five-justice reliable conservative majority that could rule the law for decades. It could overturn Roe v. Wade – which Trump said just this weekend he would like to see – reverse marriage equality and end affirmative action completely. It's also likely to destroy labor rights, protect businesses, cut back on freedoms of the press, further erode voting rights, narrowly interpret civil rights laws, allow wide freedoms for police and prosecutorial misconduct, limit environmental protection, cut back on federal power, defer to the president in times of war and more.

In other words, a second Trump appointment is the holy grail for conservatives, and the ultimate nightmare for liberals. Given the election results and the likelihood that the Republicans "go nuclear," there's almost nothing the Democrats can do to stop it – other than doing everything in their power to ensure the continued health and well-being of Justices Ginsburg, Kennedy and Breyer.