In the run-up to this week’s hearings on Sonia Sotomayor’s Supreme Court nomination, one of the memes circulating about why the proceedings mattered, despite the fact that the outcome was not in doubt, was that they would establish boundaries for future nominations by Barack Obama. Today, with the first three days of the hearing proving just as uneventful as everyone expected, The New York Times devotes its front page Sotomayor story to this idea. (The actual account of yesterday’s testimony is relegated to A18.) But this argument wasn’t persuasive a week ago, and it’s not persuasive now.
In fairness to the Times, it’s not as if reporters Peter Baker and Charlie Savage fabricated the theory. The article cites plenty of observers who believe that the vote margin by which Sotomayor is ultimately confirmed, or the concessions hostile questioners are able to wring from her, are matters of real political importance. Liberal activists, the article reports, believe that if Sotomayor “is confirmed by a commanding vote that includes a number of Republicans,” Obama can nominate someone even more liberal the next time around. White House officials themselves “say they hope to generate momentum for the next” nomination. Conservatives, on the other hand, say Sotomayor’s retreat from the “empathy” standard is a win for Republicans; if Obama’s next nominee doesn’t embrace the same line, the GOP “now can say, ‘You don’t meet the Sotomayor test,’ ” one advocate says.
The reason all this matters, everyone seems to agree, is that while Sotomayor will replace the liberal David Souter, Obama may eventually have an opportunity to replace one of the court’s five conservative justices, and thus shift the balance of power on the court. If, the next time around, “the departing justice falls into the middle-to-liberal wing of the court, then I think the president is free to nominate a similar candidate,” a former Republican White House official says. “If on the other hand, the nominee is to replace the middle-to-right wing of the court, then I think he’s got to think differently.”
But just because a view is widely held doesn’t mean it’s correct. And, in fact, the past quarter-century suggests that any constraint on Obama’s next nomination—no matter whom he is replacing—will have far less to do with Sotomayor’s testimony this week than with the prevailing political circumstances when that vacancy occurs. Barring a change in the patterns that have characterized recent Supreme Court votes—or a wariness on Obama’s part to engage a battle he will surely win—if Democrats enjoy anything resembling their current commanding majority, the president will be able to nominate whomever he likes.
To prove the point, it’s only necessary to go back four years to the last Supreme Court appointment. At that time, George W. Bush nominated Samuel Alito to replace Sandra Day O’Connor. O’Connor was no liberal, but the switch from her moderate jurisprudence to Alito’s strident conservatism has brought about a real change on the Court. Democrats in Congress knew that would happen, so they overwhelmingly opposed Alito. A substantial group within the Democratic caucus even tried to filibuster his nomination. But Republicans held a sizable majority, and with one exception they voted to confirm Alito.
Debate was fierce—just as it will be if Obama tries to shift the balance of the court—but all the Democratic protests didn’t impact the outcome. They’ve also failed to impact Alito’s rulings on the Court: He’s got a lifetime appointment, after all. The lesson is that a president who enjoys a Senate majority can shift the balance on the court as he pleases. We’ll never know whether the heated debate over Alito would have constrained Bush in the future, but there’s no reason to believe it would.
This is not to say that a president never has to take the Senate into account when making his selection. Before Alito, the last two nominations to draw serious, ideologically-based opposition were also Republican appointees who would have shifted the court in a more conservative direction. In 1991, George H.W. Bush nominated Clarence Thomas to replace Thurgood Marshall. And in 1987, Ronald Reagan appointed Robert Bork to replace Lewis Powell. Both men were reviewed by Democratic-majority Senates and were widely opposed by Democrats while being overwhelmingly supported by Republicans. Bork was rejected, and Reagan countered with the much more moderate Anthony Kennedy, who was unanimously confirmed. Thomas, meanwhile, was confirmed—an outcome that, if anything, argues against a president needing to defer to an opposition minority.
In all those cases, it was the composition of the Senate at the time of the appointment—not the vagaries of what may have been said in earlier hearings—that was the controlling factor. So why do so many people believe otherwise? Well, it’s possible the rules of the political game will be different next time. Democrats tend to be less disciplined than Republicans. And court nominations in general invite more scrutiny from the opposition now—it’s hard to imagine another Clarence Thomas case, in which a Senate majority accedes to an aggressive pick by a president of the other party.
But there’s still every reason to believe that if Obama has a friendly Senate when the next vacancy occurs—and if he has the stomach to deal with Republican complaints—he’ll have a free hand to make his selection. This week’s testimony, meanwhile, will be of decidedly secondary importance. Arguing otherwise is just another attempt to assign significance to proceedings that don’t have much of it.Greg Marx is an associate editor at CJR. Follow him on Twitter @gregamarx.