As the 2020 presidential campaign heats up, Democrats and Republicans are increasingly at odds over the issues of the day — taxes, the economy and foreign relations.
But few issues divide the major parties so distinctly as the appointment of federal judges, most particularly U.S. Supreme Court justices.
When President Donald Trump ran in 2016, he built support by releasing a list of potential nominees for Supreme Court vacancies.
Since then, he has appointed two Supreme Court justices — Neil Gorsuch and Brett Kavanaugh — as well as dozens of lower court judges.
At the same time, Democratic members of the U.S. Senate embrace strong opposition to Trump nominees to establish their political bona fides with liberal voters.
One Democratic candidate — Sen. Kirsten Gillibrand, D-N.Y. — has opposed all Trump judicial nominees since the beginning of the current Congress in January 2017.
“You could ask me about each (nominee), and each one has something wrong with their record. They’re either unqualified, or they have views that are so disproportionately outside the norm that I couldn’t support them,” Gillibrand told Politico.
This kind of apocalyptic analysis of federal judicial nominees is common in political circles.
That is why a recent study of the high court’s 5-4 decisions is so revealing.
The 2018-19 Supreme Court term was the first after the retirement of Justice Anthony Kennedy, considered the court’s swing vote. Replacing him with Kavanaugh was perceived as solidifying the court’s conservative majority.
That’s one reason why it was no surprise that 10 of the 67 cases in the court's recently expired term were decided by 5-4 decisions. But what stunned some is that the 5-4 margins did not break exclusively along liberal/conservative lines.
“In 2017, all (five) of the votes in 5-4 cases that split the justices ideologically went in the conservatives’ favor. By contrast, in the 2018 term less than 50 percent of the ideological split 5-4 decisions had the more conservative justices in the majority, with the other portion including decisions with the four more liberal justices along with one conservative justice in the majority,” states SCOTUS blog analyst Adam Feldman.
Feldman also noted “each of the more liberal justices also voted in coalitions this term where they were the lone liberal in the majority.”
The high court is divided along liberal/conservative ideological lines.
Justices Stephen Breyer, Elena Kagan, Ruth Ginsburg and Sonia Sotomayor — all Democratic appointees — are the court’s liberals.
Justices John Roberts, Samuel Alito, Clarence Thomas, Gorsuch and Kavanaugh — all Republican appointees — are the court’s conservatives.
To be sure, the nine-member court split along ideological lines in some high profile cases.
Perhaps the most notable was the court’s 5-4 decision on gerrymandering that held the redrawing of federal and state legislative district boundary lines is a political question belonging exclusively to legislative bodies.
At the same time, Justice Roberts joined the court’s liberals to block the Trump administration’s plan to ask a citizenship question on the upcoming 2020 census.
“Gorsuch provided the most swing votes for the more liberal justices this term with four,” Feldman wrote,
In two instances, Gorsuch voted with liberals to strike down “unconstitutionally vague statutory language in the criminal justice context.”
Those votes were interpreted as expressions of his suspicion of excessive power in the executive branch of government.
While Gorsuch’s stances drew attention, Kavanaugh — Kennedy’s successor — drew the most scrutiny.
Feldman writes that “the court with Kavanaugh is distinctly different from the Court with Kennedy” because there is “no longer a clear swing vote.”
Feldman said there are several swing votes, speculating that “the justices appear to be willing to make concessions to reach a consensus.”
The analyst predicted the nine justices will continue to “split predictably on certain issues,” while there will be “some surprises as the justices seek to find consensus in ways they never needed to with Justice Kennedy on the court.”