Supreme Court and other judgeships at stake in November elections

There are many reasons for voters to show up in massive numbers to defeat Donald Trump and the Republicans on November 8.  The question of the Supreme Court and other federal courts hangs over all of us.  A GOP takeover of the White House, and/or continued control of the Senate, would set back the legal rights of working people for many years to come.

The president appoints federal judges at all levels, including but not confined to the Supreme Court.   The president names new judges, but they have to be confirmed by the U.S. Senate.  Currently, there is one vacancy on the Supreme Court, caused by the unexpected death of Judge Antonin Scalia in February 2016.  President Obama has named former DC Circuit Court of Appeals judge Merrick Garland to replace Scalia, but the Republican-controlled Senate is refusing to confirm the appointment until after the elections, and perhaps not even then.  There are also a large number of lower level federal judgeships that are standing open.  Finally, it is likely that in the next few years, several Supreme Court justices and a number of district and appeals court judges will retire or pass away.

How, when and by whom all these judicial positions will be filled is a supremely important issue facing voters on November 8.

The Supremes

On the Supreme Court, the eight remaining justices have broken down along ideological lines on numerous decisions.

On the conservative side, Chief Justice John Roberts, now aged 61, was appointed by President George  W. Bush.  Associate Justice Clarence Thomas, 68 was appointed by President George H.W. Bush (the elder).  Associate Justice Samuel Alito, 66, was appointed by President George W. Bush.  The late Associate Justice Antonin Scalia was appointed by President Ronald Reagan.

On the more progressive side, Associate Justice Ruth Bader Ginsburg, age 83, was appointed by President Bill Clinton.  Associate Justice Stephen Breyer, 78, was appointed by Clinton also. Associate Justices Sonia Sotomayor, 62, and Elena Kagan, 56, were both appointed by President Obama.

Occasionally considered a “swing vote”, Associate Justice Anthony Kennedy, 80, was appointed by Reagan.  Lately he has been swinging to the right on key decisions.

So it is likely that within the term of the president we elect on November 8, in addition to the late Justice Scalia, progressive Associate Justices Ginsburg and Breyer will have to be replaced, as well as Kennedy.   Conservatives Thomas and Alito might also have to be replaced, but this is less certain.  Roberts, Sotomayor and Kagan are likely to continue on the bench for a while.

Whoever is president is likely to have the opportunity to name at least three Supreme Court justices in her or his first term.   Likewise, the Senate will have a crack at either accepting or rejecting these appointments.  If Clinton wins, she is likely to appoint justices similar to the ones Bill Clinton and Obama appointed:  Ginsburg, Breyer, Sotomayor, Kagan.

A nightmare scenario

But if Trump wins?

In recent years, the Republican nominated Supreme Court Justices have wreaked havoc on our political system and on ordinary people’s rights.   The Citizens United decision of 2010 which, for practical purposes, allows corporations to buy elections under the guise of freedom of expression, was concurred in by justices Kennedy, Roberts, Alito, Scalia and Thomas, all of whom were named to the Court by Republican Presidents.   Dissenting were Stevens, who had been named to the court by President Nixon, Ginsburg, Breyer and Sotomayor (Stevens has since retired and his seat filled by Kagan).

Another dangerous setback for democracy was caused by the gutting of the Voting Rights Act by a Supreme Court decision of 2013.    In Shelby County v Holder, the Court ruled, again five to four, to remove federal supervision from states which had a past history of violating the voting rights of minorities.   Again, Republican-appointed justices Roberts, Alito, Scalia, Kennedy and Thomas constituted the majority, with Ginsburg, Breyer, Sotomayor and Kagan dissenting.  Immediately, Republican state legislators in the affected states began their campaign of vote suppression, focused blatantly on preventing voting by African-Americans, other minorities and low income people; this voter suppression has now become a major theme of the 2016 elections.

Earlier this year, the Court confirmed a lower court’s blocking of President Obama’s efforts to give administrative relief to the undocumented parents of U.S. citizen children.  In this case, though the views of individual justices were not published, the court split four to four, almost certainly on the usual ideological basis, leaving the decision of a right wing lower court judge in place.  And that right wing Circuit Court judge, Bush appointee Andrew Hanen, is now going after not just immigrants but also Obama’s Justice Department.

A recent decision that is favorable to organized labor, Friedrichs v the California Teachers’ Association, split four to four on the usual ideological basis, leaving a pro-labor lower court decision in place.  Had Scalia not died earlier this year, it is almost certain that labor would have taken a heavy blow to its ability to collect representation fees from people it represents who do not choose to be union members.

Many further examples could be cited.  But who would Trump, as president, actually name to the court?

Trump has expressed admiration for Clarence Thomas .  Names he has mentioned as potential appointees to the Supreme Court include such legal conservatives as federal appeals court Judge William Pryor, who has denounced past Supreme Court decisions like Roe v Wade (on abortion rights, which he calls “a constitutional right to murder an unborn child”) and Miranda (rights of people accused of crimes) as impermissible judicial activism.   Another person Trump has mentioned, Judge Diane Sykes, has been bad on LGBT rights, and on birth control coverage for employees of religious institutions, among other things.

Trump has issued a list of people he favors for Supreme Court judgeships.  They are pretty much all like Pryor and Sykes, and several of them had clerked for present or past right wing Supreme Court Justices.

So we may expect that Supreme Court Justices and circuit and appeals court judges that Trump would be likely to appoint will:

*Harm women’s reproductive health and rights.

*Give a green light to discrimination against LGBTQ folks.

*Allow erosion of the separation of church and state.

*Allow voter suppression initiatives by state governments to stand.

*Restrict our civil liberties.

*Oppose the rights of whistle-blowers.

*Support anti-immigrant and anti-labor policies.

*Interfere with efforts to advance racial justice.

*Support the right of the rich and corporations to buy elections.

*Harm the rights of workers and labor unions.

The Senate is vital

Currently, Trump’s campaign has been faltering, and he is behind Clinton in the polls.  This is an encouraging sign, but should not lead us to the conclusion that we can kick back and relax.

Even if Trump loses and Clinton wins, don’t forget the role of the Senate in approving -or not-the new president’s Supreme Court and lower court nominees.  The Republicans have shown their hand by the shameless way that they have blocked President Obama’s nomination of Merrick Garland to fill Scalia’s seat on the court.   It is likely that even if Clinton wins, and appoints decent judges, the Republican Party will continue to damage the country’s justice system by continuing to block the president’s judicial nominees except in the case of candidates from the ultra-right.  So while we mobilize to defeat Trump, we must also make sure that we defeat Republican Senate candidates, with a big enough margin to make it hard for Republican senators to filibuster Clinton’s judicial nominees to death.

This can be done.  There are 34 Senate seats at stake in this election.  Nine of these are currently held by Democrats; all but one will likely stay in the Democratic column (Senator Reid’s seat in Nevada appears to be shaky). Twenty four seats currently held by Republicans  are up for re-election.  The frequently accurate Cook Political Report thinks that eleven of these are safe for the Republicans, three more will “likely” stay with the Republicans, and another two are just “leaning” Republican.   That means that eight Senate seats currently held by Republicans could flip to the Democrats.  That, even if Reid loses to a Republican, would erase the current Republican majority in the Senate, and give the Democrats a 53           seat majority (if one includes the two independents who caucus with the Democrats) instead.  If Clinton wins, her running mate, Tim Kaine, would also have to be replaced in the Senate but that seat would also most likely go to a Democrat.

This is the most optimistic view for the Democrats, however.

Additionally, many Republican donors, disgusted with Trump’s antics, are said to be re-directing their contributions to the Senate and House races.  So it will be a hard fight up and down the ticket.

So is this important?  I think the above information speaks for itself, and should be a major reason for not letting Trump within a country mile of the White House.  Not only must Trump be defeated, but it is extremely important for voters to break the Republican stranglehold on Senate, House, governorships, state legislatures and local offices.

Photo: Supreme Court building.  |  Manuel Balce Ceneta/AP


Emile Schepers
Emile Schepers

Emile Schepers is a veteran civil and immigrant rights activist. Born in South Africa, he has a doctorate in cultural anthropology from Northwestern University. He is active in the struggle for immigrant rights, in solidarity with the Cuban Revolution and a number of other issues. He writes from Northern Virginia.