I’m Still Talking About the Supreme Court

I posted on Monday about my despair about the Gorsuch confirmation and all it represents, with promises to dive deeper in subsequent blog posts.  But today, as I sat down to start writing, I thought, “this will seem like old news.  People have moved on.  I should write about something else, like Sean Spicer or Syria or FISA warrants or . . . or . . . or . . .” And then I remembered one of the reasons I started this blog in the first place – to keep a record of what is happening so it doesn’t ever start to seem normal .  The fact that we are no longer talking about the Gorsuch confirmation and what led up to it is, in itself, terrifying.

So no, I am not going to write about something more timely – the crisis or drama du jour.  I am going to tell the story of the Gorsuch confirmation from the beginning so that we all understand and remember exactly what it represents.

Let me first respond to the argument that I myself have made that Gorsuch’s confirmation isn’t that bad because the actual balance of power on the Court  — as between liberals and conservatives – hasn’t changed.  Scalia was the Court’s leading conservative, and Gorsuch is just replacing him.  So we don’t have to start freaking out until there is another vacancy. Then if it is Breyer, Sotomayor, Kagan or Ginsburg whose seat needs to be filled, the balance of power will shift.  Indeed, even if Kennedy’s seat becomes vacant, a Trump replacement could be devastating.

So yes, things might indeed become much worse.  But that doesn’t mean there is nothing to freak out about now.  Separate and apart from the fact that Gorsuch is among the most conservative Justices ever to be appointed, his ascension to the Court represents an unprecedented break in our system of governance.

On February 13, 2016, we learned that Antonin Scalia had died, either earlier that day or late the night before.  To remind us all what else was going on at that time, Republicans Donald Trump, Ted Cruz, Marco Rubio, Jeb Bush, Ben Carson and John Kasich were preparing for the South Carolina primary, and Jim Webb had just dropped out of the Democratic primary race.  President Obama had just begun his final year in office.  He had 11 months and one week left.

Within an hour of the public announcement of Scalia’s death, Senate Majority Leader Mitch McConnell indicated that Obama would not be allowed to fill the vacancy.  He went on to say the Senate would not even meet with anyone Obama tried to nominate, let alone hold hearings on the nomination.  He was true to his word.  Obama’s nominee, Merrick Garland — whom the Senate had confirmed unanimously to the D.C. Court of Appeals several years before — was never invited to meet with any Republican senators, let alone given a hearing on his nomination.  The seat remained empty for over thirteen months, until last Monday.  McConnell has called keeping Obama’s pick off the court “one of my proudest moments.” http://abncnews.com/2016/11/22/video-mitch-mcconnell-one-of-my-proudest-moments-was-telling-obama-i-wouldnt-do-my-job-until-he-left/

Needless to say, such partisan practice has never before occurred when nominating and confirming Supreme Court Justices.  According to Article II, Section 2, Clause 2 of the U.S. Constitution, it is the President’s job to nominate, with the “advice and consent” of the Senate.  The Senate is not given the right to prevent a nomination from going forward other than to vote against it.  McConnell’s refusal even to meet with a candidate nominated by the President is unprecedented. https://www.nytimes.com/2016/06/14/us/politics/obama-supreme-court-merrick-garland.html

So already we’re in uncharted territory — what is the new rule for when Presidents will receive the advice and consent of the Senate on their Supreme Court nominations? Is it only during election years that the Senate will refuse to meet with or hold hearings on a President’s nominee? And if so, what about “off-year” elections — for Senate and Congressional seats, but not for the Oval Office? Will the Senate advise and consent during those election years?http://nymag.com/daily/intelligencer/2017/04/mcconnell-rule-that-blocked-garland-not-actually-a-rule.html

Or maybe it has nothing to do with elections.  Indeed McConnell’s subsequent behavior suggests that the new rule is really that Presidents can expect to receive the advice and consent of the Senate — i.e. can expect the Senate to hold hearings on a nominee — only when the Senate is controlled by the President’s party.

Let’s take a moment to review the history of our Legislative Branch. The House is the heart of our representative Democracy:  each state gets to send a representative to Congress based on the state’s population.  The more populous the state, the more seats that state gets in the House.  The Senate, on the hand, has only 100 members — every state, regardless of population, sends two senators to Washington.  So Delaware and California have exactly the same number of votes in the Senate.

The Senate has always been considered the more deliberative body, with a long tradition of unlimited debate.  The filibuster — where a member can keep debate going by not yielding the floor — has been part of that tradition since the early 1800s.   Another part of that tradition is that Supreme Court nominees must receive the votes of a 60 senators, instead of the simple majority of 51.  These practices allow members of the minority party to have their voices heard without being drowned out by the majority.

Until last Thursday, when McConnell used the so-called “nuclear option” to change Senate Rules to allow Supreme Court nominees to be confirmed with a simple majority.  And just like that, centuries of Senate tradition of deliberation and respect for minority voices and civic discourse is gone.  Why else is it called the “nuclear option”? By definition, McConnell’s action was designed to blow up the Senate.  And it did.

From now on, the President can look forward to having his Supreme Court nominees sail through to confirmation by only 51 Senators, as long as they’re on his side.  What can we imagine will happen to a Trump nominee if the Democrats manage to take back the Senate in 2018?  Or if the Democrats take back the White House in 2020, but lose the Senate? Will we just get used to having the Supreme Court sit with only eight Justices? Or what if there are two vacancies in one term? The Senate will simply let those seats remain unfilled until they get someone in the White House they like?

This is not how a functional democracy works.  We have a broken Executive Branch, a broken Legislative Branch, and, now, a broken Judicial Branch.  The Gorsuch confirmation has made that crystal clear.

We can’t let it become normal.