‘Nuclear Option’ changes game for SCOTUS nominations, draws battle lines for future liberal justice replacements

Prof. Joe Kobylka, a U.S. Supreme Court expert, offers insight into the precedent being set by the Senate's handling of the current nomination.

Joseph F. Kobylka

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Joe KobylkaJoseph F. Kobylka

On whether the so-called “nuclear option” will lead to more partisan SCOTUS nominees…

  • “On one hand, if you’ve got the same party in control of the presidency and the Senate, you’ll have a substantially more ideological push now in terms of who is nominated and confirmed to the Supreme Court. If the presidency and the Senate are in different party hands, the institutional pressures toward accommodation and moderation that the filibuster is supposed to promote will still be in place.”

On the precedent set by the GOP successfully refusing to allow a vote on Merrick Garland…

  • “The idea that the senate will ever again allow a vote on a candidate nominated by a president from the opposing party is probably dead for the last year of a four-year term. But it would be hard to extend the precedent created this time around – and sometimes considered older under the name of the ‘Biden Rule’ – to the first three years of a president’s incumbency.”

On whether Gorsuch’s confirmation could impact any cases before the courts…

  • “He’d be taking Antonin Scalia’s position so, assuming he votes similar to Scalia, and most indications are he will, there’s probably nothing he would flip the court on. In cases dealing with religious freedom, like Hobby Lobby, he could be a significant voice on those, but beyond that, you get esoteric. The standard issues – abortion, religion in schools and other elements of public life, affirmative action – those are still closely divided in the court.”
  • “The real significance will come when either Ruth Bader Ginsberg or Stephen Breyer or Anthony Kennedy leaves the court. My guess is most of the positioning here is in preparation for the larger war to come. It’s almost like how the Spanish War was a test run for World War II. This is like that. Both sides are drawing the battle lines and getting ready for the next fight, which will probably be over replacing a liberal or centrist judge, like Kennedy.”

On whether Gorsuch’s confirmation could determine the outcome of legal challenges to the travel ban…

  • “We haven’t had a presidential power case since Guantanamo Bay, and I’m not sure if those cut left-right the same way more political issues do. If the court aligns like it did in previous executive power cases, the question will be where Kennedy or Gorsuch goes. If Kennedy goes to the left, it doesn’t matter where Gorsuch goes. One thing the court has done the last few years, or at least since Scalia died, is put off cases that would be bombastic cases. They may now feel comfortable taking some of those on because they will have a full court.”

Kobylka is an associate professor of political science.

Books published:

  • Supreme Court and Legal Change, Joe Kobylka & Lee Epstein. University of North Carolina Press, 1992
  • The Politics of Obscenity, Joe Kobylka, ed. New York: Greenwood Press, 1991
  • The Judicial Odyssey of Harry A. Blackmun, Joe Kobylka, under contract with the University of Virginia Press