Brian and Garrett Fahy

It is a revealing, and perhaps sad, commentary on the state of the GOP nomination process that so little - if any - discussion has been spent on the proper role of the federal government's most powerful branch, the scope of its powers, and the identity of its future members. Of the presidency we are not speaking: rather, the institution that is immune from polls, public opinion, the Electoral College and the demands of the tea party – the Supreme Court.

Well known to students of federal separation of powers history is President Andrew Jackson’s famous and public rejection of the Supreme Court’s approval of the Bank of the United States as a constitutionally permissible enterprise. Less well known to the nation and the GOP primary electorate is where any of the GOP candidates stand on some of the most pressing legal issues likely to come before the Supreme Court. Regrettably, though not surprisingly, arguably the most powerful branch of government - though unintended by the Framers to be so - has received scant attention from those vying for the privilege to nominate the next Supreme Court justice.

The Supreme Court merits consideration at this early stage because of the Senate electoral picture, a vacancy likelihood, and the Court’s likely involvement in heated policy issues.

First: the Senate. Though charged with the limited role of “advising and consenting” on judicial nominations, the Senate has become the gatekeeper to the promised land of lifetime judicial tenure. And control over the gates is up for grabs next fall. Democrats will be defending twenty-three Senate seats next fall, Republicans ten, and Republicans need only four seats for a Senate majority and control over the Supreme Court nomination process. Democratic seats in Montana, Nebraska, Missouri, Florida, Virginia, and North Dakota are at the top of the GOP target list, and RealClearPolitics lists North Dakota and Nebraska as likely to enter the GOP column. Further, according to the Cook Political Report, Republicans have an outside chance of capturing a seat in Hawaii after former Republican governor Linda Lingle announced her candidacy. Last, the declining popularity of Obamacare and the likelihood that it will be heard next spring and decided next summer place the Court squarely in the middle of the presidential election developments.

Brian and Garrett Fahy

Brian and Garrett Fahy are attorneys from Los Angeles who previously worked in the White House and Senate Republican Conference, respectively. They write on national legal and political affairs. They can be reached at