The mortifying state of our Supreme Court confirmation politics

The first of a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

So here we are, not even five years removed from the embarrassing political melee that followed the death of Justice Antonin Scalia, and the same movie is playing out in even more absurd fashion.

Senator Mitch McConnell (R-KY) is working the Republican back benches to ensure a yes vote for the President’s Supreme Court nominee — never mind that there is, as of yet, no nominee to vote on. This is the same Senator McConnell who refused to even hold a hearing for then-nominee Merrick Garland in 2016 on the flimsy pretext that it was too late into a election year. To call McConnell’s reversal hypocritical is an insult to hypocrisy.

Remarkably, the Democrats have acquitted themselves even more poorly. After hectoring the American public in 2016 with the smug insistence that the Senate must vote on the Garland nomination (using the Twitter hashtag #DoYourJob), and after four years of accusing the Republicans of “stealing” the seat by not holding a hearing for Garland, the Democrats now declare —with no apparent sense of irony — that they will do everything possible to prevent a vote on the as-yet-unnamed nominee. The charge has been led, most distressingly, by the Democrats’ own Vice Presidential candidate Kamala Harris, who previously pledged to shirk her Senate duties by refusing in advance to vote for any Trump appellate court nominee, and who now promises an extended vacancy crisis in connection with her efforts to raise campaign funds. 

How did we get here?

Fingers are pointing in both directions, and with good reason. McConnell’s shenanigans in 2016 left the court at less than full strength for more than a year. But only three years earlier, Democratic Senator Harry Reid used the “nuclear option” to break the filibuster — the Senate tradition that required sixty votes to proceed to a vote on a judicial nominee — in favor of short-term gains in confirming Obama appointees. Both McConnell and Reid escalated a tit-for-tat confirmation process which had made it impossible, at least at this moment, for neutral values to prevail. The party in power — whoever it is — has little incentive to back down, even though that same party will certainly face mirrored consequences once it finds itself in the Senate minority. 

Rhetoric outside the Senate has made things even worse. The President’s own reference to “Trump judges” and “Obama judges” places an overt political veneer on judicial nominations, to the detriment of the courts. Meanwhile, prominent Democrats and their sympathizers, unhappy with Trump’s success at filling the federal bench, have proposed increasingly outrageous and short-sighted reforms, led by the inane proposal to pack the Supreme Court to make up for the allegedly “stolen” seats. Worst of all, Democratic operatives are now beginning to suggest openly that confirming a new Justice this year would render the Supreme Court illegitimate — a low and pointless blow to the Third Branch.

But these actions, as gut-wrenching as they are, are merely symptomatic of the larger problem: the modern Supreme Court is carrying more political weight than it can bear. In earlier generations, major social legislation was necessarily a product of bipartisan give-and-take: the Civil Rights Act of 1964, the Americans with Disabilities Act, the Clean Water Act, and the Clean Air Act, among many others, passed both houses of Congress with strong bipartisan majorities. To be sure, the Supreme Court has been called upon to interpret and apply specific provisions of these statutes, but the Court has not had to be the final arbiter of the social policy that underlies them. By contrast, the modern Congress (and at least the last two Presidents, through executive orders) are content to push through a single-party policy agenda whenever and wherever the circumstances permit, which invites litigation and places the Court in the position of having to resolve issues that are best resolved through the political process.

The Court bears some responsibility here as well: most of its docket is discretionary, and nothing requires the Justices to take up cases involving, say, the Affordable Care Act or the Trump Administration’s immigration policy. But how can the Court be expected to stand by, especially when the American people need clarity? Without political consensus, the Justices are called upon to break the stalemate — a position for which they are politically ill-suited and institutonally ill-equipped. No wonder, then, that the political class wants to see the Court as just another tool of politics.

WHAT CAN BE DONE? It’s worth starting with some basic principles. The Constitution says nothing about the timing of the Supreme Court confirmation process. If the President and Senate want to move on it in an election year, they are certainly entitled to do so. At the same time, nothing requires them to act right away. Whatever happens, there will be no “Constitutional crisis.” 

And yet neutral values strongly suggest that in every administration, no matter who is in charge of the executive and legislative branches, a Supreme Court vacancy should be filled as early as practicable. The Supreme Court, like all American courts, has no ability to fill its own vacancies. The partisan battle leaves the court at less than full strength — an outcome that places more pressure on the remaining judges to handle their dockets, raises the specter of split decisions, and increases legal uncertainty. It is not proper to assert that the American people should have their say on the nomination at the upcoming polls. The American people did have their say — in the last election, the election that was intended to cover a full four-year period ending January 20, 2021. This is the right position, the dispassionate and neutral position, regardless of who occupies the White House. It is the position that I suspect most everyone would accept if we could divorce ourselves from the present political climate and think in terms of fundamentals.

But, of course, we cannot divorce ourselves from the current climate. It is hard to imagine the current Congress acting like statesmen and pledging themselves to breaking the disastrous cycle they have created. Barring an exogenous shock, those outside of Congress will need to speak up for these values: lawyers, respected local politicians and community leaders, and commentators. 

Perhaps most importantly, this may finally be the time in which the courts muster the courage to speak for themselves.  Chief Justice Roberts is extremely reluctant to advocate meaningfully and publicly on the Court’s behalf. (His admonishment of the President for the “Obama judges” line was a rare exception.) This reluctance is likely driven by fear of damaging the Court’s public legitimacy, which is its lifeblood. If the Court is seen as less legitimate because it injects itself into partisan debates, it will lose whatever power and authority it possesses.

But the Court’s legitimacy is already under direct attack by partisans on both sides. And the Court cannot survive merely by sticking its head in the sand and hoping no one notices its presence. As I have argued elsewhere, the Chief Justice — perhaps the entire Court — must be more vocal about the needs and position of the judiciary. It is not a partisan statement to point out that an understaffed Court harms the entire country. It is not legitimacy-eroding to advocate on behalf of a co-equal branch of government. 

These are treacherous times for any public figure and any public institution. The Supreme Court finds itself at the center of a debate that it did not invite and does not welcome. But that does not absolve it of its responsibility to make its own voice heard. It may be the only voice left that that has a chance of being heard.