To listen to many Republicans and Democrats, the primary reason to vote for a presidential candidate this year is to decide who sits on the Supreme Court. For example, Republicans who worry about Donald Trump are being told they must vote for him because a President Hillary Clinton will pack the court with liberal justices. Some are claiming that Clinton, as president, could determine the direction of the court for generations to come.
It is true there is a vacancy this year. It is also true that three of the justices are past average retirement ages: Ruth Bader Ginsburg, 83; Anthony Kennedy, 80; and Stephen Breyer, 78. But the claims about the Supreme Court are more fiction than real.
First, presidents share appointment power with the Senate, and the Senate may not go along. In the past 50 years, seven presidential nominees (Abe Fortas, Homer Thornberry, Clement Haynsworth, G. Harrold Carswell, Douglas Ginsburg, Robert Bork and Harriet Miers) have not made it onto the court. Merrick Garland may join those ranks.
The Senate has become more active in blocking presidential nominees during the past 50 years. In the first half of the 20th century, only one nominee failed to win Senate confirmation. Today, presidents cannot assume automatic confirmation. Intense partisanship, coupled with divided control between the two parties (one party in the White House and the other controlling the Senate) has exacerbated that tension and made Supreme Court nominations more problematic for presidents.
If Hillary Clinton is elected, she will be able to nominate, but she won’t be able to automatically appoint. If Republicans retain control of the Senate, they will reject a nominee who is too liberal for them. If Republicans lose control of the Senate, it will be their own fault because several Republican senators were thrown out in the wholesale rejection of Donald Trump. In that case, Republicans shouldn’t blame Hillary Clinton for who serves on the Supreme Court. They should blame themselves.
There is the matter of who actually leaves the court in the next four years. If Trump wins the presidency, it is unlikely any justice will retire. Ginsburg already has made clear her negative feelings towards Trump. Although they are not likely to make their views public, Breyer and Kennedy probably feel similarly and would not retire. Conservatives who hope that a Trump presidency will give them the opportunity to shape the court are likely to be disappointed.
Assuming Hillary Clinton wins in November, it is unlikely she will have four or five vacancies, as is claimed. First, she may not even be able to fill the current vacancy. Republican senators probably will confirm Garland before Clinton takes the oath. Even if they don’t, Democratic senators already are urging Clinton to re-nominate Garland, which she is likely to do since Garland is respected by both Democrats and Republicans. After that, Ginsburg will retire in the next four years, but Breyer and Kennedy are less likely to leave. They are in good health. Plus, some of their colleagues have stayed much longer, such as John Paul Stevens (90), William Brennan (84) and Harry Blackmun (85).
Still another factor is that presidents don’t always get what they want from justices. Conservatives worry that Kennedy will leave during Clinton’s term. Yet, Kennedy was appointed by Ronald Reagan. Harry Blackmun, John Paul Stevens and David Souter are examples of conservative justices appointed by Republican presidents who became centrists or even liberals on the court. Similarly, Byron White became more conservative after being appointed by a Democratic president.
Presidents possess no control over how a justice votes once he or she ascends to the court. Presidents may promise to appoint justices who fit certain ideological credentials, but justices often have a way of disappointing the presidents who appointed them. Hillary Clinton or Donald Trump may experience that disappointment, regardless of who they appoint.
To vote for or against a presidential candidate primarily because of the Supreme Court makes no sense. This election is not mainly about the Supreme Court. No presidential election is. There are more compelling reasons to cast a vote for president. Voters should use them.
Richard Davis is a professor of political science at Brigham Young University. He is the author of "The Liberal Soul: Applying the Gospel of Jesus Christ in Politics." His opinions do not necessarily reflect those of BYU.