Chapter 33: The Supreme Court Taffy Pull

Published May 3, 2018

Before we get back to the exciting world of primaries, caucuses, and delegate counts, we should catch up on the filling of the Supreme Court vacancy caused by the death of Justice Antonin Scalia in February. Nothing epitomizes the Great Divide more than this taffy pull.

Where we left off, Senate Republicans were vowing not to consider any nominee of President Obama’s to replace Scalia on the Supreme Court. This gross partisan abdication of duty was based on Senate Republicans’ conclusion that it was inappropriate for an outgoing president to nominate a Supreme Court justice in an election year. There was nothing in the Constitution or any legal precedent to back up this position; the GOP simply didn’t want Obama to pick the next Supreme Court justice. They would not meet with the nominee, hold hearings, or vote on him or her, no matter who it was.

Because there was no process for putting the Republicans in a time-out, their childish petulance held firm. Of course, we know how important this was. The court was divided 4-4 among liberal and conservative judges. If there was any way to put off replacing Scalia until after the election, there was a chance a Republican president would be able to name his replacement. That was the strategy, plain and simple: Partisan politics determining the makeup of the Supreme Court. It is what it is, people. Some said if the situation were reversed, Democrats would be doing the same thing. Maybe, but I’m not so sure.

“Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities,” said Democratic leader Harry Reid.

Shameful, yes, absolutely, but also curious. Why not just agree amongst themselves to vote down whomever Obama nominated? Why make themselves look bad by declaring before Scalia’s body was even cold that they would block any nominee of this president? They must have really thought they had something with this “he shouldn’t do it in his last year in office” thing, like that was some high moral ground. “The American people should decide,” they said, ignoring that we already had, by reelecting Obama in 2012 to serve another four years.

The president, who had every intention of filling the Supreme Court vacancy, appealed to Republican senators to put partisan politics aside this one time, given the importance of a full Supreme Court to the functioning of the nation. “It’s the one court where we would expect elected officials to rise above day-to-day politics and do their job,” Obama said. “I expect them to hold hearings. I expect there to be a vote.”

No way, said the Republicans; it was their ball. They represented the majority in the Senate. Majority Leader Mitch McConnell remained steadfast that “there will not be action taken” on any Supreme Court nominee. The other 11 Republicans on the Senate Judiciary Committee unanimously agreed.

This had to be the most brazen of all the brazen displays of disrespect that Republicans had shown toward the president during his two terms in office—and that is saying a lot. McConnell himself had said the GOP’s main goal during Obama’s first term would be to deny him a second term. How had that worked out for them? Yeah, it worked out great for the country too. Whatever progress we could have made under a president with a brain had been stunted by a party with a bug up its ass.

The president, to his credit, went about his business of identifying candidates, assessing their qualifications, having discussions—you know, doing his job—while Republicans continued to assert that all he was doing was wasting his time. Really, I thought the whole lot of them should have been impeached. I thought refusing to do their jobs for partisan reasons should have been grounds for impeachment.

“What you’re going to see is a further deterioration in the ability of any president to make any judicial nomination,” Obama warned of the precedent Republicans would be setting if they were allowed to get away with their behavior.

McConnell continued to insist that the Supreme Court nomination “ought to be made by the next president,” as if it were his right to rewrite the rules. I kept thinking, The more you guys keep making asses of yourselves, the more likely the next president will be a Democrat, so what in blazes are you thinking?

What they were thinking was that they’d worked up Republicans into such a frenzy of hatred toward the president over the past eight years that enough of them would not be appalled by their dereliction of duty. As with most issues, party affiliation determined where people stood on this issue. Republicans feared that a more liberal Supreme Court would take away their right to own a gun. It would not overturn the rights of same-sex couples to marry or of pregnant women to terminate unwanted pregnancies. It would further separate church from state. These were the Republicans’ greatest fears, and they were justified.

“We all know that considering a nomination in the middle of a heated presidential campaign is bad for the nominee, bad for the court, bad for the process, and ultimately bad for the nation,” said Republican Senator Chuck Grassley of Iowa, chair of the Judiciary Committee, feeling equipped to tell us what “we all know.”

“Senator Grassley and I made it clear that we don’t intend to take up a nominee nor have a hearing,” McConnell reaffirmed, lest anyone still had not got the message.

The Republicans tried to cite precedents to support their position but came up dry. In fact, the last time an outgoing president had nominated a judge for the Supreme Court in an election year had been in 1988, when Ronald Reagan had nominated Anthony Kennedy—and the Democratic-controlled Senate had approved Kennedy 97-0. Before making his nomination, Reagan had met with Joe Biden—now Obama’s vice president but then the Democratic chairman of the Senate Judiciary Committee—to discuss possible candidates who might be amendable to both parties. There had been “advice and consent,” meetings with the candidate, and a vote. This is how the system is supposed to work, but the parties weren’t as divided in 1988 as in 2016.

Republicans then dredged up a video of Biden from 1992 in which he suggested that President George H. W. Bush should not try to fill a Supreme Court vacancy in an election year. They called it the Biden Rule, as if it were some landmark decision. In reality, Biden had been speaking hypothetically, about if a Supreme Court vacancy were to open up in June, not February.

“There is only one rule I ever followed in the Judiciary Committee,” Biden said. “The Senate must advise and consent. And every nominee, including Justice Kennedy in an election year, got a vote. Not much of the time, not most of the time, but every single solitary time.”

Obama wrestled with the question of who to nominate. If the Republicans in the Senate were not going to consider any candidate, did it matter? It did politically. If Obama were to nominate someone with impeccable credentials who appealed to both Republicans and Democrats, how would that make the Republicans look? Would that not force them to at least give the person a hearing? What if he nominated a Republican?

Republican Governor Brian Sandoval of Nevada immediately took himself out of consideration when his name surfaced as a possible candidate, but it appeared that the president planned to paint the GOP into a corner. All the names being leaked were moderates with bipartisan appeal.

On March 16, 2016, President Obama nominated Merrick Garland to replace Scalia on the Supreme Court. Garland, 63, was chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. As a senior official in the Justice Department under President Bill Clinton, Garland had led the successful prosecution of Oklahoma City bomber Timothy McVeigh, who was executed in 2011, and accomplice Terry Nichols, who was serving a life sentence without parole. Garland had also led the prosecution of Unabomber Theodore Kaczynski.

Garland had a centrist record, and some Republicans on the Senate Judiciary Committee had publicly endorsed him in the past. One of them had been Orrin Hatch of Utah, but now Hatch and most of his fellow Republican senators were on their high horses, making up self-righteous reasons for not doing their jobs. Hatch even accused the president of politicizing the process. “By seeking to thrust a confirmation battle into the middle of a particularly bitter presidential election, President Barack Obama carelessly risks further polarizing and politicizing the confirmation process, and further damaging the integrity and public standing of the Supreme Court as an institution,” Hatch said. “By deferring the confirmation process until after this toxic election season, the Senate is doing exactly what it should. We are doing our job.”

Oh, thank you, Republican senators, from saving us and the president from ourselves. Of course, the toxic climate to which Hatch referred would still, unfortunately, be there when the election was over. He sounded more honest when he offered this reason to not consider Garland: “Liberals want above all to shift the balance of the Supreme Court to the left, a move that will have dramatic consequences for the lives and freedoms of all Americans for generations.”

Yes, and Republicans wanted “above all” to undo social progress and move things back into the dark ages, a move that would also “have dramatic consequences for the lives and freedoms of all Americans for generations.” What’s the difference? The difference was that Obama, a Democrat, got to make the pick. The Republicans’ reasoning just sounded like sour grapes to me.

But it just kept getting better—or crazier, depending on your point of view. Here’s one more from Hatch: “The liberal left is seeking to bully the Republican-led Senate into ignoring its constitutional responsibilities and further destroying our nation’s delicate system of checks and balances.”

So let’s get this straight: The president nominates a replacement to the Supreme Court per his constitutional responsibility. Republicans in the Senate decide not to consider the candidate, abdicating their constitutional responsibility. Now read Hatch’s last quote again and try not to laugh.

But McConnell’s statement was still the best. “It’s about principle,” he said—that principle being that Republicans didn’t “want to confirm a judge who would move the court dramatically to the left. That’s not going to happen.”

Then he left us with this zinger: “It seems President Obama made this nomination not with the intent of seeing a nominee confirmed but in order to politicize it for the purposes of the election.”

In other words, the president picked a highly qualified candidate who would appeal to both parties just to make Republicans look bad. I had news for the Republicans: They didn’t need any help looking bad.

The Republicans’ hardline stance had probably caused Obama to nominate a less liberal candidate than he might have preferred. They should have been patting themselves on the backs. Instead, they were risking the next president picking someone more liberal than Garland.

Some Republicans broke with their party and said they would consider meeting with Garland. Most were senators up for reelection in states where many of their constituents did not agree with the party’s stand. One of these was Mark Kirk, from my home state of Illinois. Garland, by the way, is from Chicago and went to high school in my school district, Niles Township, only he went to Niles West, where he was valedictorian, and I went to Niles North, where I was not.

“We should be doing our job,” Kirk said, giving me newfound respect for him, even if he was just doing what he thought he had to do to get reelected. He was one of three Republican senators who actually did meet with Garland, the other two being Susan Collins of Maine and Jerry Moran of Kansas.

McConnell was defiant. “There will not be hearings or votes,” he said. “The next president, whoever that may be, is going to be the person who chooses the next Supreme Court justice.”

In a speech at the University of Chicago, President Obama lamented our political system and the divide over the Supreme Court vacancy. Obama had once taught Constitutional Law at U of C. Can you envision Donald Trump teaching Constitutional Law at U of C? Can you envision him passing a course in Constitutional Law at U of C?

Obama scolded Republicans who had decided that placating their base was more important than upholding their constitutional integrity. “Merrick Garland is an extraordinary jurist who is indisputably qualified to serve on the highest court of the land, and nobody really argues otherwise. If you start getting into a situation where the process of appointing judges is so broken, so partisan, that an eminently qualified jurist cannot even get a hearing, then we are going to see the kind of sharp partisan polarization that has come to characterize our electoral politics seeping into our judicial system. That erodes the institutional integrity of the judicial branch. At that point, people lose confidence in the ability of the courts to fairly adjudicate cases and controversies. Our democracy cannot afford that.”