In the run-up to this weekâs hearings on Sonia Sotomayorâs 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 yesterdayâs testimony is relegated to A18.) But this argument wasnât persuasive a week ago, and itâs not persuasive now.
In fairness to the Times, itâs 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 âis confirmed by a commanding vote that includes a number of Republicans,â Obama can nominate someone even more liberal the next time around. White House officials themselves âsay they hope to generate momentum for the nextâ nomination. Conservatives, on the other hand, say Sotomayorâs retreat from the âempathyâ standard is a win for Republicans; if Obamaâs next nominee doesnât embrace the same line, the GOP ânow can say, âYou donât meet the Sotomayor test,â â 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 courtâs five conservative justices, and thus shift the balance of power on the court. If, the next time around, âthe departing justice falls into the middle-to-liberal wing of the court, then I think the president is free to nominate a similar candidate,â a former Republican White House official says. âIf on the other hand, the nominee is to replace the middle-to-right wing of the court, then I think heâs got to think differently.â
But just because a view is widely held doesnât mean itâs correct. And, in fact, the past quarter-century suggests that any constraint on Obamaâs next nominationâno matter whom he is replacingâwill have far less to do with Sotomayorâs 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 votesâor a wariness on Obamaâs part to engage a battle he will surely winâif Democrats enjoy anything resembling their current commanding majority, the president will be able to nominate whomever he likes.
To prove the point, itâs 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 OâConnor. OâConnor was no liberal, but the switch from her moderate jurisprudence to Alitoâs 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 fierceâjust as it will be if Obama tries to shift the balance of the courtâbut all the Democratic protests didnât impact the outcome. Theyâve also failed to impact Alitoâs rulings on the Court: Heâs 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. Weâll never know whether the heated debate over Alito would have constrained Bush in the future, but thereâs 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 confirmedâan 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 appointmentânot the vagaries of what may have been said in earlier hearingsâthat was the controlling factor. So why do so many people believe otherwise? Well, itâs 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 nowâitâs 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 thereâs still every reason to believe that if Obama has a friendly Senate when the next vacancy occursâand if he has the stomach to deal with Republican complaintsâheâll have a free hand to make his selection. This weekâs testimony, meanwhile, will be of decidedly secondary importance. Arguing otherwise is just another attempt to assign significance to proceedings that donât have much of it.
Greg Marx is an associate editor at CJR. Follow him on Twitter @gregamarx.