The Grim Future of the Supreme Court

Dick Lugar, just about the last moderate Republican standing in the Senate, lost his primary bid for reelection tonight. Jon Chait notes one of the reasons why:

The most important and alarming facet of Lugar’s defeat, and a factor whose importance is being overlooked at the moment, is one of the reasons Mourdock cited against him: Lugar voted to confirm two of Obama’s Supreme Court nominees.

….The social norm against blocking qualified, mainstream Supreme Court nominees is one of the few remaining weapons the Republican Party has left lying on the ground. But if Republican Senators attribute Lugar’s defeat even in part to those votes for Kagan and Sotomayor, which seems to be the case, what incentive do they have to vote for another Obama nominee? And then what will happen if he gets another vacancy to fill — will Republican Senators allow him to seat any recognizably Democratic jurist? Especially as the Supreme Court interjects itself more forcefully into partisan disputes like health care, will it become commonplace for the Court to have several vacancies due to gridlock, for the whole legitimacy of the institution to collapse?

Good question. Supreme Court nominations have been getting steadily more partisan for the past three decades. Setting aside Clarence Thomas, who’s clearly an outlier, take a look at the number of opposing votes that nominees have received since the mid-80s. Scalia and Kennedy received zero opposing votes. Souter received 9. Ginsburg received 3 and Breyer received 9. Roberts received 22 and Alito 42. Sotomayor received 31 and Kagan 37. We’re already damn close to the day when Supreme Court nominees are approved (or not) on straight party-line votes.

That’s unworkable, of course, which means that either the trend toward strict party discipline reverses at some point, or else the Senate changes its rules. At the moment, I’d bet on the latter.


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