A Vacancy on the Court
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Welcome

Make no mistake, Supreme Court appointments are always political, and both sides know how to play the game. The Kavanaugh nomination was roundly criticized by the media and the senators themselves as being an especially nasty affair, but given the stakes, the recent change in Senate rules for confirmation, and the vulnerability of the nominee, one should not be surprised or even dismayed by the political goings-on. Indeed, one could argue the Democrats were simply too nice, failing to go for the jugular. What they needed was a smack-down along the lines of Senator Ted Kennedy in the Robert Bork nomination of 1987. What makes the actions of one side appear so bad is the rhetoric of the other side portraying it that way.

What has eluded the Republicans since the presidency of Richard Nixon is the creation of a solid conservative majority on the Court, despite having had fourteen appointments to the Court in that time compared to only four for Democratic presidents. Over that time, however, and ever since the nomination of Clarence Thomas in 1991, the Republicans have learned how to appoint reliable conservatives to the Court. No more Harry Blackmuns, Lewis Powells, David Souters, or even Sandra O'Connors or Anthony Kennedys, the latter two being conservative more often than not, though insufficiently so on some key issues. With the departure of Kennedy, the Republican appointees of Roberts, Alito, Gorsuch, and now Kavanaugh, join with Thomas to likely secure the Republican holy grail of a solid conservative bloc.

Unfortunately, to attain that goal the Republicans scrapped the filibuster option for Supreme Court confirmations, eliminating the need for any kind of collaboration with the minority. Increasingly, Republicans have played "the end justifies the means" kind of politics, bolstered now by a president who embraces the tactic. Consequently, the Republicans refused to act on President Obamas nomination of Merrick Garland in 2016, allowing it to languish for nearly 300 days. Ever trying to define itself as taking the high road, Republicans framed that action as giving the American people the opportunity to fill the vacancy, referring to the presidential election. Of course, they never acknowledged the irony that a majority of the American electorate preferred Hillary Clinton. A majority of electors, however, preferred Donald Trump. Then, with the midterm election of 2018 approaching, in which the control of the Senate, a co-equal partner in the appointment of justices, was at stake, the Republican high road led to filling the Court vacancy as soon as possible. Apparently, giving the American people a say in the process was no longer necessary. It's all about the end game, and for the Republicans that end has long been a steadfast conservative Supreme Court.

This is not to say the Democrats might not have played it all the same way. After all, they eliminated the filibuster for lower court confirmations in 2013, although they pointedly left undisturbed the much more significant Supreme Court confirmation process. To be sure, the Republicans had previously threatened the same action during George W. Bush's presidency, but they found it helpful in their accelerated use of filibustering Obama federal court appointments. Overall, the Republican party clearly has kept its eye on the prize and been more intent about securing a majority of conservative justices on the Supreme Court.

Macabre as it sounds, the wait is on. The liberal justices Ginsburg and Breyer are 85 and 80 years old, respectively. Conservative Justice Thomas is 70. Anyone who controls both the presidency and the Senate can now put through virtually any decent choice. Until 2021, that appears to be the Republicans, sporting a 53-47 advantage in the Senate to serve President Trump.

This site has been created to help citizens, students, journalists, academics, and politicians alike understand and anticipate the Supreme Court appointment process as it unfolds. The links to the left walk you through the different stages of the vacancy, nomination, and confirmation processes. Click on the Vacancy link for an exploration of motivations in retiring or not retiring. Go to the President page for a look at how presidents address vacancies and subsequent nominations. Please feel free to make suggestions about how this site can better serve any of you by submitting comments from the FAQS page. Also, consult the FAQs page for answers about questions involving the current situation. Substantial changes and additions will be made to this site now that two vacancies on the Court have occurred. Please check back periodically for new information.


Last update for this page: February 3, 2019, by GW