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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Clinton Could Create Most Progressive SCOTUS Since the Warren Court

It’s not an especially novel observation to note that the future shape of the Supreme Court is at stake in this presidential election. But more specifically, the long-time control of SCOTUS by Republican nominees could be coming to an end, a possibility I examined at New York.

[T]rue domination of the Supreme Court by one party or ideology takes time, and usually consecutive presidencies of the same party. A Clinton presidency following an Obama presidency could do the trick.

That would be a really unusual opportunity for the Donkey Party, which has not had more than eight consecutive years of controlling the White House since Harry Truman left office. Republicans have had vastly better luck in securing SCOTUS nominations. Indeed, because Jimmy Carter did not have a single SCOTUS vacancy to fill, Republican presidents appointed an astonishing ten consecutive justices between 1969 and 1991. The only reason this did not produce a profoundly conservative SCOTUS era is (as any conservative, and especially Christian conservative, will tell you) that multiple Republican-appointed justices turned out to be relatively liberal on certain issues (notably abortion) or liberal altogether (e.g., John Paul Stevens and David Souter).

As Dylan Matthews explains at Vox, a second President Clinton (especially if she won a second term) would have a good shot at creating the first unambiguously liberal Court since 1971, and perhaps a 6-3 liberal majority on SCOTUS in fairly short order. Aside from stopping a conservative trend on the Court in areas ranging from campaign-finance reform to business regulation to labor law, such a development could lead to progressive constitutional landmarks unimagined for decades, such as prohibitions on mass incarceration and establishment of a truly national right to vote without state and local obstruction and harassment.

It is theoretically possible, of course, that Clinton appointments could disappoint liberals the way Nixon and Ford and Reagan appointments have disappointed conservatives. But probably not: The brouhaha over “treacherous” Republican justices has made it vastly more acceptable to vet potential nominees carefully for their past record and their judicial philosophy. There may be some doubt about what Donald Trump will do in the way of shaping the Supreme Court in a coherent manner. But Hillary Clinton’s direction in judicial appointments should be clear enough, and will probably motivate an unprecedented degree of conservative resistance in the Senate and beyond.

If we are lucky, conservative resistance to progressive SCOTUS nominees will be a worst-case scenario for Democrats.

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