Let’s Not Fight to the Bitter End for the Supreme Court

11 mins read



Nothing in the Constitution requires chivalry. Or consistency.

That’s why Senate Majority Leader Mitch McConnell is allowed to say in 2016 that  after an unexpected death of a Supreme Court justice in an election year, the nomination to fill the vacancy “should be made by the president the people elect in the election that’s underway right now,” and say in 2020, “President Trump’s nominee will receive a vote on the floor of the United States Senate.” He doesn’t have to apply a consistent principle after the passing of Antonin Scalia and Ruth Bader Ginsburg. So long as McConnell has the votes in the Senate, he can do what he wants.

As McConnell knows all too well, he may not have the votes in the Senate by January, and may no longer be majority leader, because voters may render a harsh verdict on the performance of some of his colleagues. (The odds of him losing his own reelection campaign are slim.) If that happens, and if Democrats want to respond to McConnell’s inconsistencies by packing the Supreme Court — evening the score or running up the score — they can. The only consistent principle in place will be: whatever power your party can seize, with the votes you have, go seize it.

Such a world doesn’t seem to bother pure majoritarians; why shouldn’t a party that won the last election get to do what it wants? But we should heed the words of former California Gov. Jerry Brown, who recently said on the podcast of veteran campaign manager Joe Trippi, “Democracy is not about winning by 1% of the vote and then shutting the other side out of 100% of the decisions. The only way this country can hang together is if there is a due respect for the non-winners, the minority in Congress.”

If Democrats did retaliate through procedural warfare, the war would not end on their watch. To pass a law expanding the number of seats on the Supreme Court, Democrats would almost certainly have to abolish the legislative filibuster on a narrow party-line vote, after using the “nuclear option” procedural maneuver to blow past the Senate parliamentarian and circumvent the existing filibuster rule. The day would eventually come when Republicans regained power, and they would pursue their own court packing, and then some.

What would be the point of this escalation? If the goal of ideologues is to shape a court that will reliably spit out rules that satisfy their ideology, chances are they will be chronically dissatisfied. The entire enterprise was constructed by the Founders to be as insulated from political pressure as possible. That’s why a John Roberts can uphold Obamacare, and a Neil Gorsuch can expand civil rights to transgender people. With the lifetime appointment, no politician can tell a Supreme Court justice how to rule.

After years of Republicans insisting all they want are judges who aren’t “activist judges,” Sen. Josh Hawley is trying to set a new standard. In July, he said, “I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided. By explicitly acknowledged, I mean on the record and before they were nominated.” (After Ginsburg’s death, Hawley posted on Twitter, “I stand by that commitment, and I call on my fellow Republican senators to take the same stand.”)

Social conservative frustration is borne from decades of Republican-appointed Supreme Court justices refusing to overturn Roe when given the opportunity, from Sandra Day O’Connor to John Roberts. We can’t know if the Supreme Court stars will ever align for abortion opponents, but we do know it’s a lot harder than it looks to get appointees to do the bidding of politicians. And if even if Roe does get struck down by a future court, we also know that will hardly be the end of the abortion battle in America; on the contrary, it would rage more fiercely than ever before. And the procedural warfare behind it would continue unbounded.

Is this the government we want? Is this the government Mitch McConnell wants? Did Mitt Romney get himself elected to the Senate to watch silently while the American center dissolved in the hot lava of ideological passions? Does the 87-year-old Chuck Grassley, who said several times this past summer that he would not process a Supreme Court nomination in a presidential election year were he still chairing the Judiciary Committee, want to end his Senate career violating his own principle to feed unchecked partisan battling?

Grassley was chair of the Judiciary Committee during the stymied Merrick Garland nomination process, and he says now, “I would not have a hearing on it because that’s what I promised the people in 2016.” Back then, McConnell and other Republicans were citing what they called “Biden Rule,” in reference to a June 1992 Senate floor speech during which Biden recommended that then-President George H.W. Bush, in the hypothetical event of a vacancy that election year, should “not name a nominee until after the November election is completed.”

Biden did not extend his recommendation to the post-election lame duck Senate session. In 2016, Republicans routinely ignored that part. (“This vacancy should not be filled by this lame duck president,” McConnell said in 2016.) But perhaps Republicans will suddenly remember it if they choose to not to rush a vote in October.

Ideally, all Republicans, and the rest of us, will take in the entirety of that Biden speech.

Biden lamented that “the [judicial] confirmation process has thus become a convenient scapegoat for ideological advocates of competing social visions — advocates who have not been able to persuade the generally moderate American public of the wisdom of either of their views when framed in the extreme. In effect … these advocates have joined in an ad hoc alliance, the extreme right and the extreme left, to undermine public confidence in a process aimed at moderation — hoping, perhaps, to foment a great social and cultural war in which one or the other will prevail.”

And Biden counseled the Senate to resist attempts by presidents to radically change the court without clear public support: “When the country and the court are divided, then a determined president has the greatest opportunity of remaking the court in his own image. To protect the independence of the court and the integrity of the Constitution, the Senate should be vigilant against letting him succeed where they disagree.”

Nominally today, the Republican president and the Republican Senate are not in disagreement. But we are all acutely aware that the country and the court are deeply divided.

Will enough Republicans want to reverse our national polarization, and prioritize protecting the integrity of our institutions over claiming partisan spoils? If not, will a President Biden be guided by his own moderate, bipartisan impulses, or will the prospect of a partisan, oppositional Supreme Court undermining his ability to govern prompt him to plunge into partisan procedural warfare?

When, during the Obama presidency, Democrats responded to a Republican blockade against nominations to the U.S. Court of Appeals for the District of Columbia Circuit by using the nuclear option to junk the filibuster for lower court appointments, McConnell famously responded, “You’ll regret this, and you may regret this a lot sooner than you think.” If he won’t heed the wisdom of his own words now, we need somebody in power who will.

Bill Scher is a contributing editor to Politico Magazine, co-host of the Bloggingheads.tv show “The DMZ,” and host of the podcast “New Books in Politics.” He can be reached at [email protected] or follow him on Twitter @BillScher.





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