Supreme Court Appointments

May Be Tricky!

The members of the U.S. Supreme Court are nominated by the President and confirmed by a majority of the Senate. Simple, clear and easy you may think.

But be careful!

If polls are accurate (still an IF), Donald Trump will become, sometime after November 3rd, a “lame duck” president – turned out of office by voters but still fully vested with the powers of his office for another two and a half months.

November 3rd may also bring a new, Democratic majority to the U.S. Senate. Although that body will be seated on January 3rd, there’s still a two-month gap between Election Day and swearing-in the new Senate, during which the “lame duck” Senate still can also exercise all of the powers granted to it under the Constitution.

That raises the possibility of a post-election nomination and confirmation battle, with the lamest of ducks in both the White House and the Republican-controlled Senate still fully in control of the process.

As a good friend commented to me in discussing this topic, that really is “the lame leading the lame” – does that seem possible/right?

We are, as a result, at significant risk of politicians, just soundly repudiated at the ballot box, making lifetime appointments that the whole country will have to live with long after those just UNelected officials have left the political stage.

This asymmetry is fundamentally anti-democratic and not remotely in the spirit of the Constitution. 

What can be done?

The newly President-elect might ask the Supreme Court to stop the appointment. But the Court has always been deferential to the prerogatives of the other two branches, and it’s far from clear that they could or would intervene.

On the other hand, the Court, which has rarely been ignorant of political realities, has a chance to do the right thing.  Chief Justice Roberts has already shown a keen understanding of the Court’s role in such critical moments.

There are few precedents and no clear and easy answers. It is, therefore, a good idea that we hash this out BEFORE it happens. A long-term solution might be an appropriate provision (constitutional or otherwise) establishing that a President may not make ANY nominations to the bench between Election Day and the last day of his or her term.

A short-term approach might be to suggest to the few still vulnerable Republican Senators that they pledge to refuse to support any nominee submitted after November 3. Whether they would keep their word where the rubber meets the road is another question. (They weren’t very shy when they dragged out Garland’s appointment for a whole year.)

Leaving aside all current politics, it stands to reason that a President who has just lost reelection should not be able to do something as important and lasting as appointing a Justice for life. But there is no apparent precedent for this question, and when the ‘framers’ created today’s rules, this subject seemingly never even occurred to them.

Given the vital importance of the Supreme Court in today’s world, it is time to deal with the matter. The obvious increasing partisan divide in our governance – with the levers of power used to advance political instead of public interests – ensures that this subject won’t go away on its own.

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