Can Democrats replace Justice Ginsburg?

Supreme Court Justice Ruth Bader Ginsburg, in an Elle magazine interview, announced she would not retire because, “[Obama] could not successfully appoint anyone I would like to see on the court…. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.”

Several commentators responded to Ginsburg’s comment with skepticism. Harry Enten at Five Thirty Eight said, “Consider me misguided. Chances are the Senate would approve a justice like Ginsburg.” Vox.com’s Ezra Klein insinuates that Ginsburg underestimates Democrats’ ability to alter Senate rules. These are all interesting pieces you should read if you have not already. But they are missing some critical points in the hypothetical scenario of replacing a Supreme Court justice.

Today’s Senate politics are the result of a long, downward procedural spiral. Filibuster scholar Steven Smith calls it the Senate Syndrome. In recent years, minority parties have increasingly used procedural privileges to obstruct business. Majorities (from both parties) summarily responded with hardball tactics that increasingly exclude the minority party.

This is a relatively recent development. The Senate’s increasingly partisan process can be traced back to the very late 1980s/early 1990s, but really it has only recently begun to fully blossom in the last 15 years. The last decade of Senate politics is arguably the least cooperative, most partisan in its history. That is not to say past policy disagreements were not stark in previous generations. But today’s obstruction and procedural hardball is unmatched.

This has several implications for Ginsburg or future Supreme Court nominees. First, the next Supreme Court confirmation fight will not be like the others. While confirmations have been made in this partisan environment (Justices Sotomayer, Kagan, Alito, and to a lesser extent Roberts), more recent nominees have faced more partisan opposition. Comparing a Ginsburg replacement debate to any confirmation debate in the last 30 years doesn’t really work. Very heavy-handed partisan tactics have become commonplace. Maneuvers such as routinely filling the amendment tree to prevent minority-sponsored amendments, using 60-vote thresholds to pass amendments (or better put, block unwanted amendments), and the ubiquity of the filibuster are just a few hallmarks of this very partisan Senate. Understanding the confirmations of past judges is helpful. But in all likelihood the next confirmation debate will be an entirely different animal.

The nuclear option, invoked last November, has complicated future confirmations. Majorities have yet to test the waters on a Supreme Court nomination since last year’s filibuster reform. It is entirely unclear how the minority will react. Senate Republicans retaliated after cloture was changed but only modestly. Republicans delayed votes, extended debate, and have generally refused to cooperate when Reid has tried to expedite executive and judicial confirmations. These delays have not been devastating; however, they are certainly an indication of how the minority has reacted to the nuclear option. They have slowed the process to the extent that they can. If they remain in the minority (which is not likely), they will not likely back down.

Such a response could have major consequences though. As Klein points out, violently reacting against a well-qualified candidate could spur further filibuster reforms and shut the minority out of all confirmations. He further argues this is a fundamental miscalculation on Ginsburg’s part.

Despite the fact a precedent now exists to change the filibuster rules by a majority vote, this drastically oversimplifies the situation. Reforming a rule on the magnitude of cloture is no easy feat. Even if it requires only a majority vote, political support must be garnered and fought for. For example, the nuclear option was not a reform that simply came into being in November of 2013. In fact, some form of the rule change emerged as early as 2005. Rumors of reform again emerged in 2009, 2010, 2011, and 2012. Many were certain filibuster reform would occur on the first day of the 113th Congress. However, it wasn’t until a year later that the nuclear option was actually used.

Google trends graph of filibuster rules searches.

The nuclear option took years to develop. It was not a simple flip of the switch. Many Democrats such as Sens. Joe Donnelly (D) of Indiana, Dianne Feinstein (D) of California, Mark Pryor (D) of Arkansas, Jack (D) of Rhode Island, and Carl Levin (D) of Michigan were not convinced that going nuclear was a good idea. Reform-minded members had to convince their colleagues this change was necessary. This took years. And finally, even when the caucus was convinced of the need for reform, changes to Supreme Court confirmations was too much to stomach for many Democrats. Therefore, it is unlikely Democrats could simply change the rules again. That kind of move was too extreme for the majority to stomach last year and that likely hasn’t changed to a significant in the time since.

That said, Democrats are becoming more hawkish on filibuster reform through attrition. Of the nine, or so, reluctant Democrats from this past Congress, Sens. Max Baucus (D) of Montana, Tim Johnson (D) of South Dakota, Jay Rockefeller (D) of West Virginia, and Levin will retire from the Senate this January or have already left. This is significant but possibly insufficient. A one or two vote majority in the 114th leaves very little margin for error. There are enough reluctant Democratic senators left to prevent another bold nuclear maneuver. If the next filibuster change is anything like other major rules reforms, this is a process that will likely take years.

If there was ever an opportunity to appoint somebody “like Ginsburg,” now would be as good a time as any. However, that isn’t because the Senate has allowed similar nominees in the past or because the majority would quickly reform the rules. It’s because Senate partisanship is likely to get worse in coming years. In other words, the chances of confirming more liberal or conservative justices will continue to dim. Unless the political environment or the rules change, Supreme Court nominees are likely targets for obstruction, if for no other reason than this is one of the last places a minority can actually use leverage on opposing administrative nominees.

Ginsburg is probably right that Obama does not have the gravitas or the political support in the Senate to nominate someone like her. However, it is unclear any future president will enjoy enough political capital to nominate the kinds of justices that currently sit on the court in the current environment and under the current rules.

Joshua Huder publishes his Rule 22 blog at http://rule22.wordpress.com.