U.S. Supreme Court the Biggest Political Prize of 2016; Conservative Wing Likely Majority During Trump’s First Term December 14, 2016 Vol. IX, No. 16 7:13 am The Biggest Prize of 2016 Presidential Race On Saturday, December 11, 2016, with a Republican victory in the Louisiana U.S. Senate runoff election, the GOP moved one step
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U.S. Supreme Court the Biggest Political Prize of 2016; Conservative Wing Likely Majority During Trump’s First Term
December 14, 2016 Vol. IX, No. 16 7:13 am
The Biggest Prize of 2016 Presidential Race
On Saturday, December 11, 2016, with a Republican victory in the Louisiana U.S. Senate runoff election, the GOP moved one step closer to securing the biggest political prize of all in 2016, a majority conservative wing on the U.S. Supreme Court. Senate Republicans now have a 52-member majority in the chamber tasked by the nation’s founding fathers in 1789 with confirming the President’s federal court nominees.
The nation’s highest court currently consists of a four-member liberal wing (Breyer, Ginsburg, Kagan, Sotomayor), three conservatives (Alito, Roberts, Thomas), one swing vote (Kennedy), and the vacant seat of conservative Justice Antonin Scalia, who died February 13, 2016.
Filling the Scalia vacancy, likely one of the first orders of business of the Senate in 2017, will make the court ideologically balanced at 4-4, with Kennedy as the critical swing vote. It will be the next vacancy that will give Republicans the opportunity to create a majority conservative wing.
Regarding the next vacancy: The average age of retirement from the court is 79 years old. Three justices are at or past the average retirement threshold: Ruth Bader Ginsburg, a liberal, will be 84 years old next March; Anthony Kennedy, a swing vote, will be 81 years old in July, 2017, and Stephen Breyer, a liberal, will be 79-years-old in August, 2017.
The court’s ideological pivot will occur if one of those three retires during the next four years.
Partisan Balance of Lower Federal Courts Will Also Shift
With a Republican-majority Senate likely throughout President Trump’s first term, the GOP is well positioned to build a conservative majority on the U.S. Supreme Court and reverse the Obama administration’s successful takeover of the lower federal courts.
As important as the Supreme Court is, they only hear 70-80 cases a year out of 7,000-8,000 requests, issuing 50-60 opinions. Most of the heavy lifting at the federal level is done in the U.S. District courts (673 district judgeships) and the U.S. Courts of Appeals (179 circuit judgeships), where 350,000-400,000 cases are being managed at any given time.
According to The Brookings Institution, in 2009, as President Obama began his administration, Republican appointees held 56% of the 179 federal circuit court judgeships to only 36% held by Democratic appointees (8% vacant).
In 2016, after 55 confirmed Obama nominees, Republican appointees made up only 42% of the circuit court judgeships to 53% held by Democratic appointees.
- In January 2009, 10-of-13 U.S. Circuit Court of Appeals had Republican-majority appointees to only 1 Democratic-majority court (2 neither)
- In January 2016, only 4-of-13 U.S. Circuit Appeals courts had Republican-majority appointees to 9 Democratic-majority circuit courts
U.S Senate Majority Up for Grabs in 2018
The first critical hurdle for Republicans to ensure four years of conservative appointments to the federal courts will be the midterm federal elections of 2018. It is also the first opportunity for Democrats to stop the GOP takeover of the federal courts.
Although historically the first midterm elections during a new presidential administration do not favor the party in the White House in U.S. House races, the GOP structural advantage in the U.S. Senate races will be a formidable challenge for Democrats:
- In 2018, Democrats will be defending 25 seats, 10 in states Trump won
- In 2018, Republicans will be defending 8 seats, 7 in states Trump won
If Republicans maintain the U.S. Senate majority in 2018, it is highly likely that many decisions by liberal, Democrat-appointed federal judges on issues such as Affirmative Action, LGBT Rights, Election Laws (Voter ID, Same-day Registration, Early Voting), Abortion, Obamacare, Guns, Immigration, Public-sector unions, Citizens United, Religious Freedom … will eventually be overturned by a new era of conservative, Republican-appointed judges and justices.
Federal Court #1 Nemesis of Republicans in NC General Assembly
The prospects of a conservative U.S. Supreme Court and more Republican-appointed judges on the lower federal courts must be making Republicans in the North Carolina General Assembly giddy with anticipation. That is because their #1 nemesis on election law reform and social issues like marriage has been the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia.
The Fourth Circuit Court has 15 judges, 10 of whom were appointed by Democratic presidents … including three from North Carolina (Judge Allyson Duncan, Judge James Wynn, Jr., and Judge Albert Diaz).
Most of the significant legislative losses by North Carolina Republicans since their 2010 takeover of the General Assembly have been at the tip of the pen of federal court judges.
It was federal judges on the Fourth Circuit Court of Appeals who declared the GOP-drawn congressional maps unconstitutional, requiring them to be redrawn and re-contested in 2016. It was federal judges who declared that Republican-drawn state legislative districts were unconstitutional, requiring remapping by March 15, 2017, and new elections in the fall of 2017.
It was a federal judge who ruled that HB2 could not be enforced by the UNC system. It was a ruling by the Fourth Circuit Court of Appeals that voided North Carolina’s Amendment One, a law banning same-sex marriage.
In July, 2016, it was a 3-judge panel of Democratic appointees on the U.S. Fourth Circuit Court of Appeals that struck down the Republican voter ID law, declaring it racially discriminatory. It was federal judges who struck down laws eliminating same-day voter registration and out-of-precinct voting because the GOP-backed laws “target African Americans with almost surgical precision.”
Time and time again, federal judges appointed by Democrats on the Fourth Circuit Court of Appeals have thwarted North Carolina Republican lawmakers.
Now, at the dawn of a conservative federal judiciary, those rulings may one day be overturned. Surely, that’s what Republicans lay awake and dream about.
A decidedly conservative Supreme Court means that the authority to decide many social policy issues will likely return to the states. It means that conservative states like Utah, Alabama, and Wyoming may have laws on controversial issues like abortion and marriage completely different from liberal states like Vermont, Rhode Island, and Massachusetts.
It means federal court rulings by judges who see racially discriminatory intent behind conservative election reform laws will be overturned by justices who see constitutionally permissible partisan intent.
The United States Supreme Court is by far the biggest political prize of 2016.
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John N. Davis
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