Donald Trump will get to fill a Supreme Court vacancy that should not exist. It persists only because of outlandish ideological obstruction by Senate Republicans. That obstruction will now taint the eventual appointee, whom the legal community should shun after confirmation.
The vacancy could easily have been filled this year. It arose from Justice Antonin Scalia’s death, which happened in February. The Senate had plenty of time to confirm a successor before the Court’s next annual term began in October.
{mosads}Of course, politics, not time, prevented the confirmation of a successor. Senate Republicans saw a chance to obstruct it in hopes that a Republican would win the presidential election. It made no difference that President Barack Obama had extended an olive branch by defying his base to nominate a centrist Democrat, whom Republicans had previously praised.
The year-long obstruction was never about letting voters weigh in. Obama had a higher approval rating than either of the alternatives. The pretense collapsed entirely when it looked like voters would weigh in the wrong way. Anticipating a Hillary Clinton win, Senate Republicans decided that the appointment needed blocking for four more years. The scheme was never anything but an ideological grab.
But Clinton did not win, so the ideological grab will probably succeed. True, Senate Democrats can try to filibuster an extremist, but they may be stripped of that prerogative in a retaliatory use of the “nuclear option” they pioneered. Progressives can try to block a hostile nominee by pressuring moderate Republicans, such as senators Susan Collins and Jeff Flake. But some Trump nominee will eventually be confirmed.
The question is whether everyone should just roll over and capitulate as if the ideological grab never happened. The Trump appointee will be a member of the Court, with all the powers that come with the position. But ignoring the obstruction that preserved the vacancy for purely ideological reasons would validate that misbehavior as a new normal.
An alternative is shunning. The Court’s influence rests on its legitimacy as an impartial arbiter. But the Trump appointee will owe his or her position to an ideological scheme meant to keep the vacancy open for however many years it took to get a conservative. Such an appointee should be shunned as an illegitimate ideological plant.
This shunning could entail anything lawful that denies the appointee’s legitimacy. Treating the appointee as persona non grata is one example. Justice Clarence Thomas has experienced a bit of that shunning among some who credit Anita Hill’s accusations of sexual harassment. High regard is not an entitlement.
Neither is a pay raise. While the compensation of justices cannot be “diminished during their Continuance in Office,” nothing prescribes increases. Future Congresses might even try to freeze the salary of the appointee who owes his or her seat to this ideological grab, although concern for judicial independence may caution against starting down the path of varying salaries by justice.
Most importantly, the appointee’s illegitimate vote can be shunned. Because the appointee’s presence on the Court will be illegitimate, so too will be any 5-to-4 decision with the appointee in the majority. While people must obviously comply with such decisions, the legal community need not internalize them as legitimate additions to the law. Instead, they should be regarded as merely provisional, lacking precedential force and subject to overruling without constraint. Commentators should carefully designate and quarantine them.
To be clear, disapproval of Donald Trump is not the reason for this shunning, and it would not apply to his subsequent appointees. The reason for the shunning is the ideological grab by Senate Republicans, which will render his appointee to this particular seat an ideological trespasser. To deter similar misbehavior in the future, there has to be some form of punishment, to borrow a phrase.
J. Stephen Clark is a professor of law at Albany Law School in New York.
The views expressed by Contributors are their own and are not the views of The Hill.