Having never agreed with Justice Scalia on much, I nevertheless felt a sense of loss when I first heard that he had died, as his pithy writing style made the law both instructive and entertaining. Within an hour of Scalia’s death, Senate Majority Leader Mitch McConnell released a statement to the press. However, instead of respectfully expressing his condolences, McConnell insisted that the Senate would not hold hearings for a potential successor to Scalia on the Court. While it has become commonplace for congressional Republicans to act illogically over the past few years, this recent path of political maneuvering is particularly troubling. While Republicans claim to believe that “the people” should decide the next Court nominee—by granting whoever is elected president in 2016 a mandate to make an appointment—the true rationale behind their obstruction is clear: Republicans want to maintain the conservative majority they have enjoyed on the Court since 1991.
While the politics behind Republican obstructionism is understandable, a blatantly partisan approach to the Court is untenable, as it could set a dangerous precedent for future nominations. Last month (before Scalia’s death), Chief Justice John Roberts articulated that the Court's nominating process “is not functioning very well,” pointing out that many of his colleagues had been confirmed along party lines when they should have been confirmed unanimously. The Chief Justice’s comments imply what our politicians should know: that the Court and politics should mix as little as possible. Of course, the process of appointing a Supreme Court justice will never be nonpartisan. To argue that the Democrats do not politicize Court nominations would be fallacious. However, the level of obstructionism we are currently witnessing is wholly unprecedented.
The Republicans posit that justices in the modern era have not been nominated in election years; therefore, the next elected president should select the nominee, making the 2016 presidential election an effective referendum on the Court. The rarity of election year SCOTUS nominations does not provide a valuable precedent for stonewalling, though. While Justice Kennedy was nominated in November 1987, as opposed to in 1988, do those two months truly make a difference? That anyone could believe both that the Republicans are acting according to principle by preventing a nomination from going forward, and that President Obama is acting politically by following his constitutional obligations—as Senator McConnell claims—is beyond comprehension. The notion that “the people should have a say in the Court decision” is itself erroneous. The people have had their say. Solid majorities of the American people re-elected President Obama in 2012. The president’s constitutional responsibilities do not cease until his successor is sworn into office on January 20, 2017.
Senator McConnell has spearheaded an additional deceptive talking point to support the absurd Republican position: that the Republicans are simply following the “Biden Rule.” McConnell refers to footage from the Senate in 1992 when then-senator Joe Biden discussed the possibility of not holding a hearing in the event of a Court nominee being put forward by President George H.W. Bush. However, as the Republicans are wont to do, they have taken Biden’s statement out of context, conveniently leaving out parts of the same speech that undermine their position. For instance, Republicans have managed to gloss over an integral assertion from Biden from the same speech, in which he held: "I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate. Therefore I stand by my position, Mr. President. If the president [George H.W. Bush] consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support." The operative phrase in the aforementioned passage concerns Biden’s emphasis on compromise.
Twenty-four years later, the White House has put forward a compromise nominee and the Senate has refused to act. Is there any doubt as to which branch of government or which party is incapable of compromise? Utilizing a twenty-four year old line that has been taken out of context to set such precedent goes beyond the normal sphere of political obstruction. Even a basic understanding of constitutional law would be enough to know that there is not a shred of constitutionality to the Senate Republicans’ course of obstructionist action.
Obama's consensus nominee, Chief Judge of the DC Court of Appeals Merrick Garland, has gained a reputation as a brilliant, moderate jurist who has been lauded by members of both parties. Members of government from all three branches respect Garland’s legal intellect and his fundamental decency. Recently, a member of George W. Bush’s administration penned an op-ed for the New York Times titled “Bush Would Have Nominated Garland.” In it, he makes the case that if Bush had been forced to contend with a Democratic majority in the Senate when naming a nominee to the Court, Garland would absolutely have been a serious contender. In light of these facts, the disrespect that the Republicans are demonstrating both to Garland and to our country’s constitutional process reveals that the Grand Old Party has reached a grand new low.
I am not naïve enough to think that either party always chooses principled actions over political expedience. But I also used to think that there was such a thing as bipartisan respect for institutions—whether that institution is the Senate, the Presidency, or the Supreme Court. Instead, it has become increasingly clear that one party has made a conscious choice to devalue our institutions for the sake of undermining a president elected to office twice by the American people. In choosing the path of greatest resistance, the Senate Republicans have established a devastating precedent for our governing institutions, and more generally, for our democracy. They must be so proud.