Political Pinball and the Supreme Court
In 2005, a young D.C. attorney published an article arguing that the left’s reliance upon the courts to advance their political agenda — rather than through legislative action — had eroded the judiciary’s claims to neutrality and independence. Recognizing the growing political and de facto legislative function of the courts, he wrote, politicians increasingly subjected court appointees to “ideological litmus tests, filibusters, and vicious interest-group attacks.” In his view, it was the changing role of the judiciary, from interpreters of the law to legislators, that politicized the confirmation process.
Since then, the Senate has played political pinball with Supreme Court appointments. In 2007, as the Bush administration drew to a close, Senator Chuck Schumer suggested that “we should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances.” The Democrats’ will to obstruct that nomination process was never tested, because there were no more vacancies under the Bush administration, but the same theme played out over the next decade.
From 2008 onwards, Senate Republicans made obstructing Obama’s judicial appointees a priority. By 2013, with a slew of vacant judicial seats and facing an intransigent Republican minority, Democrats changed Senate procedure to allow confirmation by a simple majority vote for all court appointees other than the Supreme Court. The move filled countless seats but embittered Republicans, who deemed the move the “nuclear option.”
When Antonin Scalia died unexpectedly in February 2016, Senate Republicans took the extreme step of refusing a vote on the confirmation of Merrick Garland, President Obama’s appointee, though the election was nine months away. The move may have won them the White House. That vacancy became an election issue and brought to the polls Republican voters who, dismayed by Trump himself, may have stayed home otherwise.
President Trump’s nomination of Neil Gorsuch to the Supreme Court will restart this bitter game. But there’s no way for the Democrats to block Gorsuch’s confirmation. If they can’t reach the 60 votes needed for Supreme Court confirmations, the Republicans could deploy that same “nuclear option” and change Senate rules again to allow confirmations to the Supreme Court by a simple majority.
So the Democrats are stuck. Some have indicated they plan to make this process about Republican obstruction to Merrick Garland’s appointment under Obama. Others have said they’ll approach the process in good faith, not wanting to repeat the behavior they criticized so fiercely. Either way, Gorsuch is likely to be confirmed.
All of these fights, from the Republican’s obstruction of the Garland appointment to the coming fights over Gorsuch, damage our institutions, especially, in my view, the legitimacy and reputation of the Senate. About the damage to the judiciary, that young D.C. attorney continued, “It is a warning sign that our judiciary is losing its legitimacy when trial and circuit-court judges are viewed and treated as little more than politicians with robes.”
The writer of that 2005 article? Neil Gorsuch.
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