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The Supreme Court Is At the Tipping Point: Should A Democratic Senate Prevent Bush From Creating A Solidly Conservative Court?
An Historic Perspective, and Some Advice to the Senate


Friday, Feb. 23, 2007

"It has been two decades in the making, but this is the year Justice Antonin Scalia, the Supreme Court's most outspoken dissenter, could emerge as a leader of a new conservative majority," reports David Savage, legal reporter for the Los Angeles Times. Savage says that the Court will soon issue rulings relating to race, religion, abortion and campaign finance "where Scalia's views may now represent the majority."

David Savage's analysis is a reminder that the High Court is closer than ever to a conservative tipping point. Today, the conservative bloc consists of Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. The center-left justices are John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Associate Justice Anthony Kennedy is the swing vote - and often a right-leaning one. However, Kennedy has been surprisingly liberal on issues such as gay rights - as represented by his opinions in Romer v. Evans and Lawrence v. Texas. In addition, he voted not to overrule Roe in Planned Parenthood v. Casey.

What if Stevens, Souter, Ginsburg or Breyer should leave the Court during the remainder of the Bush Presidency? Bush would very likely opt to select another conservative, and create a conservative majority on the Court. This prospect makes conservatives salivate, and liberals shudder.

This hypothetical scenario is anything but a reach. Justices Souter (age 67) and Breyer (68) appear to be in the best of health. However, Justices Stevens (86) and Ginsburg (73) are the oldest members of the Court.

If fate were to open one of these center-left seats on the Court, Senate Democrats should immediately advise the President that they will only consent to a nominee who is a moderate.

Indeed, they should make crystal clear that if Bush, a lame duck president, sends another rock-ribbed conservative nominee who will clearly tilt the Court, they will leave the seat vacant until the voters have spoken as to whether they want a solid conservative Court. (A vacant seat would certainly raise the already high stakes of the 2008 presidential race, and while it would put a burden on the other justices, it would only be temporary.)

The First Effort of a Lame Duck President to Influence the Supreme Court

The politics of a lame duck president's packing the federal courts with judges who will further his governing philosophy are nearly as old as our nation. The late Chief Justice William Rehnquist recounted the first time this occurred in his book on the history of the Supreme Court: As Rehnquist recounts, Chief Justice Oliver Ellsworth resigned in December 1800, as the presidential election of that November was being sorted out in the Federalist-controlled House of Representatives. By December, Rehnquist writes, "it already appeared that the election of 1800 had gone against the Federalists, and [President] John Adams felt a strong need to put a dedicated Federalist on the bench before the government should come into the hands of Jefferson and the Republicans." First, Adams approached John Jay, who had earlier occupied the seat before resigning to run for governor of New York. When Jay turned the nomination down, Adams, "like a bolt out of the blue," nominated John Marshall. The Federalist Senate quickly confirmed Marshall.

Adams, however, was only getting started. Rehnquist reported that "less than three weeks before Jefferson would succeed Adams as President," the Federalist Congress passed the Circuit Court Act (named the "Midnight Judges Act" by opponents); "[t]he bill relieved the Supreme Court justices of their circuit duties, reduced the number of judges from six to five, and established six new circuit courts with sixteen new judges to administer them," Rehnquist noted. "All sixteen of the new judges were, of course, appointed by John Adams, the lame-duck president."

Rehnquist says that Thomas Jefferson was not the sort of president to take this treatment lying down, so when Jefferson and his party gained control of both the presidency and the Congress in 1801, "they promptly enacted a new judiciary bill which repealed the obnoxious provisions of the Midnight Judges law."

In addition, Congress "passed a law abolishing the June and December terms of the Supreme Court, which had been created by the act of 1801, and … [b]y dint of this rather extraordinary measure, enacted with ill-disguised hostility toward the Supreme Court, an adjournment of that body was enforced for fourteen months - from December 1801 to February 1803." Thus, Jefferson simply abolished the new circuit courts and closed the Supreme Court down to counter the lame duck appointments.

The most recent occasion of a lame duck president trying to fill a vacancy to influence the balance of the Supreme Court occurred in 1968-1969. It many ways, it was as rough and tumble as that of 1800-1801.

Nixon Versus Johnson (and Warren): The Last Effort of a Very Lame Duck President to Influence the Supreme Court

In June 1968, Chief Justice Earl Warren sent a letter to President Lyndon Johnson informing the President that he was resigning for reasons of age. (He was 77, and otherwise in good health.) Two weeks later, President Johnson nominated Associate Justice Abe Fortas to become Chief Justice, and federal circuit court judge Homer Thornberry to take the Fortas seat on the Court. Both men were close personal cronies of LBJ and, like Earl Warren, judicial liberals.

Presidential candidate Richard Nixon understood precisely why Earl Warren had retired from the Court five months before the election. Nixon's campaign had been hammering away at the rulings of the Warren Court, and the politically savvy Chief Justice - the former Governor of California - knew that Richard Nixon, a man he held in minimal high esteem (as the diplomats put it), was going to be elected president. By retiring, Warren could preempt an attempt by Nixon to put fellow conservatives on the Court to reverse the Warren Court legacy.

Rather than let Earl Warren pull a fast one - one that would give LBJ two appointments at the High Court -- Nixon passed the word to Republicans in the Democratic controlled Senate to kill the Fortas nomination before it got out of the Senate Judiciary Committee. If it was not killed there, Nixon's campaign surrogates (Nixon remained above the fray) urged the Republicans to mount a filibuster. Republicans - and many conservative Southern Democrats who did not like Fortas - were more than willing to help out.

The hearings before the Senate Judiciary Committee were protracted and ugly. Republican Senator Strom Thurmond, and anti-pornography groups like the Citizens for Decent Literature, attacked Fortas for First Amendment opinions that protected material so vile that only male Senators (and members of the press) could see it -- privately. Most damaging, Republicans got a tip that Fortas had been paid $15,000 (which amounted to forty percent of an associate justice's salary at the time) to teach a series of seminars at American University.

A badly damaged Fortas was nonetheless reported out of the Judiciary Committee, which resulted in Republicans mounting an historic filibuster - the first against a Supreme Count nomination. When it was clear that Republicans had the votes to keep the filibuster going, Fortas requested that his name be withdrawn. And since he remained on the Court as an associate justice, the associate justiceship vacancy to which Thornberry had been nominated no longer existed. So Thornberry's nomination, too, was withdrawn. (Because these events were quite recently misrepresented by GOP Senators, who claimed Democrats invented the filibuster against judicial nomination, I have also addressed this subject in an earlier column.)

Unfortunately, that was not the end of the story. Nixon convinced Earl Warren to stay on until the end of the June 1969 term - when he appointed Warren Burger to be chief justice. Meanwhile, Nixon's Department of Justice began an investigation, and soon found the leverage (an investigation into Fortas's former law firm, where his wife was a partner) that was needed to convince Fortas to resign. In fact, it was a bluff that worked: Nixon did not really have good reason to continue the investigation, nor feel anything momentous would be unearthed. Nonetheless, Nixon had his second seat to fill on the Court.

Extreme Measures Are Not Needed To Prevent Bush from Filling a Fortuitous Vacancy Late in His Presidency

Jefferson and Nixon both played hardball. When Jefferson could not remove his least favorite cousin John Marshall, his surrogates literally closed the High Court down. Nixon used every trick in the book, and had his friend House Minority Leader Jerry Ford try - but fail - to remove another Justice, William O. Douglas. These were excessive actions.

But a president who late in his presidency seeks to influence the Supreme Court is, by definition, picking a fight. Thus, if Bush should find himself with a Supreme Court vacancy, Senate Democratic leaders should take the initiative. The Constitution calls for them to give "advice" to the President about such nominations. So they should explain why they will reject any nominee of the president who might drastically change the disposition of the Supreme Court, by giving it a solid conservative majority. Here are a two suggested approaches for Congress to take:

Hold No Hearings Whatsoever. The Senate could simply inform the president that given the current political balance of the country, not to mention the reaction of voters in 2006, the American public should have a chance to speak at the polls before any president effects a radical change in the Court. (Obviously, the closer to the November 2008 election that any such a Court vacancy occurred - and I hasten to add that I hope no vacancy does appear - the stronger this argument that Bush should do nothing.)

Based on the Fortas precedent, at the five-month point before the election, the Republican members of a Democratic controlled Senate felt it was well within its rights to tell a president they would not even consider a replacement; rather, it would be for the next president to fill that vacancy. At twenty months out from the election - as is the case today - a different approach is required.

Advise The President that No Conservative Will Be Approved. Should a vacancy occur more than, say, ten months away from the election, then Senate leaders should simply inform the President that they will not let him lock in a solid conservative majority on the Court. Many convincing explanations can be given for the Senate's taking this stance: For example, public opinion is not ready to remove the separation of church and state, nor to return prayer or teaching creationism to public schools. Moreover, polls show quite clearly that the majority of American do not want Roe v. Wade overturned. And these are just a few of the actions that would be undertaken by a Scalia-led Court that would not command public agreement or assent.

Clearly, with the Democrats in control of the Senate (albeit, depending on the recovery of Democratic Senator Tim Johnson of South Dakota), they can reject any nominee they wish. According to the Congressional Reference Service, from 1789 to 2004, the Senate rejected some twenty-two percent of all presidential nominees to the High Court.

Often, the Senate has rejected nominees for purely political reasons. For example, I watched the Senate both destroy a good judge and fine man, Clement F. Haynsworth Jr., who was nominated by President Nixon in 1969, and reject a not so fine fellow, G. Harrold Carswell, who was nominated by President Nixon in 1970. (The FBI never did a proper background check on Carswell, for had they done so, Nixon surely would never have nominated him). No nominee was more qualified than Robert H. Bork, who was nominated by President Reagan in 1987, but rejected by the Senate because he was too conservative.

Senate Democrats likely would be joined by several of the moderate Senate Republicans in their efforts to block the filling of any vacancy until after the 2008 election. Thus, so long as the Democrats have control, Bush is not going to be able to permanently tilt this court.

Still, things could get thrilling if a seat were to open this year and Bush were to find a stealth candidate whose politics were claimed to be moderate, and whose true views remained somewhat mysterious. By comparison, Justice David Souter, largely a cipher when nominated, turned out to be quite liberal - but what if he had been the conservative Papa Bush thought he had nominated?

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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