SUNY Buffalo Law Links - March 2016

Faculty panel sees politics in play in Supreme Court fight

Lecturer Bernadette Gargano, Professor Martha McCluskey and Associate Professor Anthony O’Rourke

Supreme Court watchers are waiting for President Obama to nominate a successor to the late Justice Antonin Scalia, and wondering whether the Senate will even consider the nominee. Against that backdrop of election-year political maneuvering, a panel of three Law School faculty explored some names and some possible outcomes in this squabble over a seat on the nation’s highest court.

The speakers at the March 7 forum were Professor Martha McCluskey, Associate Professor Anthony O’Rourke and Lecturer Bernadette Gargano. The event was sponsored by the Women of SUNY Buffalo Law, a student organization for the professional and educational advancement of women law students.

The choice of the next justice, Gargano said, is “pivotal.” She pointed to a statement by Dow Chemical Co., which just settled an antitrust suit for $835 million because of “the unpredictable nature of what’s happening on the Supreme Court.” (Justice Scalia was widely seen as friendly to business interests.)

“You can’t overestimate the importance to the country of the composition of the Supreme Court,” said McCluskey. But, she added, the nomination process has become grist for the political mill. “The court has always been politicized to a certain extent, but the politics of today depend on the court in newly heightened ways,” she said.

“It’s legitimate to say that there should be a debate about the political values, the positions, and the visions of the law and the Constitution that potential Supreme Court justices hold. The argument against this delay in holding hearings is that this is not a robust debate about a particular nominee’s qualifications and vision; it’s not about coming forward with better or different candidates. It’s about taking away the current president’s power to nominate. It’s simply about gumming up the political works and making government ineffective or delayed.”

O’Rourke noted the recent news that the Obama administration has been vetting a federal judge in Iowa, Jane L. Kelly, as one possible nominee. That would put the Republican chairman of the Senate Judiciary Committee, Sen. Charles Grassley, in a difficult position. Grassley has insisted that the Senate will not consider any nominee. But when Kelly was up for approval as an Eighth Circuit Court of Appeals judge, Grassley praised her effusively on the Senate floor.

“That puts him in a politically difficult position at home,” O’Rourke said. “You can see the ways the White House appears to be exploiting Senate conventions to try to get a nominee through.”

If no hearings are held, O’Rourke raised the possibility of a discharge petition, a tactic that he said hasn’t been used since 1965. In that situation, a majority vote of the Senate would force the nominee out of the Judiciary Committee and before the full Senate for an approval vote.

Oddly, he said, according to Senate rules, “you can only file a discharge petition in the morning, and right now the Senate is not working in the morning.”

“There’s something important and legitimate to some of what the Republicans are drawing on,” McCluskey said. “The Supreme Court is enormously powerful and has enormous influence over our lives.”

At the same time, she said, there’s a certain irony to the delay, because – despite the insistence on originalist interpretation that Scalia championed – “the Constitution’s words leave open a whole lot,” including exactly how and when the Senate should consider a nominee. “The intent of the Framers,” she said, “seems to be to open up to future generations the responsibility for dealing with the hard questions they didn’t answer and they couldn’t answer.”