Far from Normal

Let’s not pretend that the Supreme Court confirmation process isn’t broken.

Monday, February 13 marks the anniversary of Justice Antonin Scalia’s death; and we still have just eight justices on the Supreme Court. Republicans abdicated their constitutional duty by failing even to grant a hearing to D.C. Court of Appeals judge Merrick Garland.  But, with a new resident in the White House, Senate Majority Leader Mitch McConnell acts as if that unprecedented cold shoulder never happened. Since President Trump nominated Tenth Circuit judge Neil Gorsuch to the Court, McConnell has declared that “the American people simply will not tolerate” any Democratic effort to block a Supreme Court nominee.

Say what??

McConnell suggests that everything-is-everything/business as usual.  Only it’s not.  The Senate Judiciary Committee moving ahead on the merits of Judge Gorsuch’s nomination would be like Jennifer Garner inviting Ben Affleck to her family reunion.  The Republicans’ refusal to do their constitutionally enumerated job has damaged the confirmation process and harmed all three branches of government.

How We Got Here

To recap: within hours of Justice Scalia’s death, McConnell announced that the Senate would not confirm anyone.  His reason?  “The people should decide.”  The fact that the American people had re-elected President Obama, whose judicial philosophy they knew by virtue of previous nominations, didn’t matter.  Those weren’t the people McConnell was looking to hear from.

When President Obama nominated Merrick Garland, whom the Senate confirmed easily in 1997, and whom even Senator Orrin Hatch had claimed he could support, the justification shifted.  The so-called “Biden rule” prevented holding hearings in an election year.  Except there was no such rule or tradition.  Justice Anthony Kennedy was confirmed in an election year.

The real reason, of course, was the naked desire to keep the balance of the Court tilted toward the right.  This was “Justice Scalia’s seat.”  And, McConnell and his followers were bound and determined to keep it empty until they could guarantee a replacement in his image. That reason became crystal clear when candidate Trump’s campaign was imperiled.  At that time, Senators Cruz and McCain suggested they wouldn’t confirm any Court nominee if Clinton were elected. According to Cruz, the Court could function just fine with eight Justices for another four years.

These Senators took the Supreme Court hostage and were willing to continue doing so for four (or eight) years until they could guarantee the result they wanted.  Perhaps when the furor over the election died down, calmer heads would have prevailed.  But, the Republican’s rhetoric is telling, especially in light of their unprecedented obstruction of a qualified nominee, and harmful.

The Senate’s inaction with respect to Garland disrespected the Presidency.  Not just Mr. Obama, but the institution. McConnell and crew thumbed their noses at a duly elected Executive acting within his Article II authority to nominate Justices to the Supreme Court.

By abandoning their constitutional duty under Article I to give advice and consent to the President’s nominees, the Senate has undermined Congress’s standing in the public. Members’ open pursuit of political gain at the expense of anything else only fuels voter cynicism and apathy.

Finally, hijacking the confirmation process has stained the Court.  Justice Roberts voiced such a concern days before Scalia died in a speech at New England Law School:

 “We don’t work as Democrats or Republicans,” the chief justice said, “and I think it’s a very unfortunate impression the public might get from the confirmation process.”

The Senate’s failure even to grant Merrick Garland a hearing only reinforces the view that the Court is a political instrument and not one governed by the rule of law.

President Trump says “it would be an absolute shame” if a man of Gorsuch’s caliber were caught up in political gridlock and has given McConnell the green light to “go nuclear,” that is, eliminate the possibility of filibuster, which requires 60 votes to end. In short, pivot away from the constitutional mess on our hands and toward the merits of Judge Neil Gorsuch.

 

But now is not the time for business as usual.  Judge Gorsuch’s nomination presents an opportunity to put on the table just how very broken the system is and address it. That means at the very least  that Senators must resist Mr. Trump’s suggestion that they kill the filibuster. Senator Chuck Schumer should not hesitate to remind his colleagues and the public just how far from normal we are and how we got here.

Author: Verna L. Williams

Interim Dean, Nippert Professor of Law, co-founder and co-director of Cincinnati Law's Center for Race, Gender, and Social Justice. Professor Williams joined Cincinnati Law's faculty in 2001. She teaches Constitutional Law; Gender and the Law; and Family Law. Her research examines the intersection of race and gender in law and society.

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