It’s been nearly four years since activists engaged in a battle over a Supreme Court nomination, and a tepid one it was.
Republicans barely pushed back on President Obama’s 2010 nomination of Elena Kagan, his second appointment in as many years. She was confirmed by the Senate, 63-37.
At the time, influential Republican Sen. Jon Kyl of Arizona acknowledged the problem inherent in pursuing a high court battle: The GOP had only 41 Senate votes, making it “pretty difficult” to sustain a filibuster against Kagan, or any Obama appointee.
That could change by year’s end.
Republicans are growing increasingly confident that they can win control of the Senate this fall — and with it the power to block, or at least bedevil, Obama’s efforts to fill potential Supreme Court vacancies during his last two years in office.
That prospect means that interest groups including the National Rifle Association, the conservative Committee for Justice, and the liberal People for the American Way are starting to fire up their message machines in what all view as a singular opportunity to shape the high court going forward, given its current makeup.
The Committee for Justice last week asserted that “filibustering a bad nominee will not be an option” without a Senate takeover, warning that Democrats could expand the “nuclear option” to the president’s Supreme Court nominees. At People for the American Way, Marge Baker said retaining Senate control is necessary to prevent Republicans from solidifying what she characterized as a court that “tilts more and more toward corporations and the powerful.”
Both arguments aim directly at each party’s base. And while Supreme Court appointments don’t rank high on lists of voter priorities in either party — health care, unemployment and budget concerns are usually the most cited by voters — the issue could play a role in determining the outcome in several close races.
“I’m not going to tell you that I expect this to be a first-order issue, but it may inform and affect the first-order issues,” says Ed Whelan, of the conservative Ethics and Public Policy Center. “Issues like Obamacare, for example, or how the president might be using, or abusing, executive orders.”
“It’s an additional argument to rally the respective bases to turn out,” he said.
Seasoned Justices, But No Retirees Yet
Two of the four oldest justices on the court, which leans conservative 5-4, are liberals. Justice Ruth Bader Ginsburg, is 80 and has survived two bouts of cancer; Justice Stephen Breyer is 75. Conservative Justice Antonin Scalia is 77, as is Justice Anthony Kennedy, a conservative considered a swing vote on some issues.
Those facts suggest that a vacancy is not outside the realm of possibility, though no one has indicated plans to step down from his or her lifetime appointment, including Ginsburg. She (and Breyer, to a lesser degree) have consistently dismissed pressure to step down from progressives anxious to guarantee that Obama pick her successor.
In attempting to rally the party faithful around the high court issue, Committee for Justice President Curt Levey has warned Republicans that it’s not just liberal justices Obama may have an opportunity to replace but also any of the five justices he characterizes as “center-right.”
The Issues At Stake
The machinations surrounding the potential Supreme Court vacancies are heightened by recent events: the president’s Affordable Care Act, upheld by the high court in 2012; the court’s 2010 Citizens United decision, which allowed corporations and unions to spend unlimited money on campaign ads and other electioneering tools; Senate Majority Leader Harry Reid’s decision to eliminate filibusters for presidential nominations — with the exception of Supreme Court nominees; the evergreen issues of guns and abortion.
Both sides see opportunity.
“In a number of ways, the court will definitely figure into the 2014 elections, and we see the issue as a winning one for progressives,” says Baker, of People for the American Way. “We start with outrage over Citizens United, which has only grown in four years.”
The NRA and conservative group also see political promise in the fight, especially in close races where motivating just a sliver of the base has the potential to make a significant difference.
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