Sure enough, a vacancy on the highest court in the United States has appeared. Far from being merely in an election year – as happened in 2016 – this vacancy has occurred during the election itself, a time when the political work of government comes to a slow drip while elected officials wait to see who has won the hearts and minds of the country. Ha, ha, just kidding, time to confirm a new justice.
This has been four years in the making. When a vacancy occurred in the final year of the Obama administration, Senate Republicans made it clear they were done playing around. The president has the power to make nominations, they said, and the Senate has the power to block those nominations for any imaginable reason. This bucked a long-standing tradition in American politics that the Senate would confirm any nominee put forward unless they, for example, wanted to eliminate civil rights protections and had been instrumental in a massive antidemocratic cover-up at the highest level of American government. Short of that, though, nominees tended to go through no matter what. Truly. No matter what. But the Republicans had discovered a new tool under the Clinton administration and had dramatically expanded it under the Obama administration: obstruction. By blocking the administration from performing even the most routine things, like spending the money that Congress itself had instructed the president to spend, Congressional Republicans got two big benefits:
First, Republicans could make the incumbent president look weak and ineffectual. Even if Americans recognized that Congress, not the White House, was too blame (which they did), the perception that President Obama simply couldn’t do anything about it affected his popularity, too.
Second, Republicans were actually getting a huge political victory by blocking up the process of nominating new judges or selecting administrators for government agencies or appointing commissioners. The 2020 election will be held without a quorum on the Federal Election Commission because Republicans refused to confirm Obama era appointments; the result is that the FEC doesn’t have the power to enforce election law.
This is all on purpose, an exercise of what Joe Biden called “raw political power,” the unbridled use of power unconcerned with democracy or a sense of justice. The American system depends on restraint, which is one of the reasons why so few countries use it. Unrestrained, one party could simply dominate American government; Nixon’s downfall depended on his own party’s willingness to cast him out, something that would not repeat itself decades later when even Republicans who believed President Trump was guilty refused to convict him. The Trump administration has laid bare the fundamental weakness of the American system: if you come into the White House with a willingness to tear the whole thing apart and your party isn’t willing to stop you, you might be able to succeed.
For a while, the parties were willing to stop their own leaders if they got too out of line. Democrats even challenged Obama, who – like all modern U.S. leaders – enjoyed nearly unlimited power when it came to foreign affairs. Of course, there was no serious effort to stop Obama from using military power as he wanted, but the president can just veto that anyway. That’s what Trump did when, in 2019, Congress told him to stop trying to engage in an undeclared war in Yemen. This is, perhaps, not how a democracy should work.
“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”Sen. Mitch McConnell (R-KY), 2016
The death of Justice Antonin Scalia in 2016 opened a seat on the Supreme Court. Scalia was beloved by conservatives for his adherence to originalism, an approach to interpreting the U.S. Constitution based primarily on what the Framers intended it to mean. Liberals tend to favor a practice known as the living Constitution, which interprets the Constitution through a modern lens.
The Constitution, for example, says you have a right “to be secure in [your] persons, houses, papers, and effects, against unreasonable searches and seizures,” which the Framers could not have meant would include the papers on your computer because they didn’t know computers would exist. In 2001, Scalia issued the majority opinion in a case over a thermal imaging device, ruling that the use of the device to determine if an Oregon man was growing marijuana violated his right to privacy. Writing for The Nation, David Cole argued that Scalia’s ruling wasn’t about privacy but about property: “This is a rare instance of an alliance between liberals and libertarians, united here in support of the sanctity of the home. For Scalia and Thomas, at least, it all comes down to property. Step outside, and you’re fair game.” In this sense, Scalia could apply the same rules that the Framers undoubtedly intended: a right to be secure in your home against an unreasonable search. Two years later, Scalia wrote (in a dissenting opinion) that a person had no expectation of privacy that could warrant protection against a Texas law banning consenting same-sex adults from engaging in sexual activity (although he also criticizes the justices who ruled that there was a privacy protection for not instead saying that a fundamental right to homosexual sodomy exists in the Constitution and it’s hard to not agree that he’s right, that would have been outstanding).
To fill this seat, Obama knows he can’t appoint some kind of extreme liberal ideologue and instead picks Merrick Garland, a federal judge since 1997 who previously was involved in the investigation of the Oklahoma City bombing. Garland has some nice law and order credentials and a history of judicial decisions that can be reviewed. He’s a somewhat bland pick who was, in essence, nominated under an understanding of the old way: Obama would pick a moderate jurist to replace Scalia and Republicans would confirm him because he was nice and moderate and if they really wanted another Scalia they’d have to win the election and hope someone else would die or retire.
Instead, Republicans played obstruction. They refused to confirm Garland, whose selection now looked, somehow, even weaker. As Pete Buttigieg correctly said in 2019, “It’s true that we embrace a far left agenda, they’re going to say we’re a bunch of crazy socialists. If we embrace a conservative agenda, you know what they’re going to do? They’re going to say we’re a bunch of crazy socialists.” Garland was slammed by Republicans as too liberal while liberals and leftists criticized Obama for not dying on a more interesting hill than Merrick Garland.
Perhaps still fearful that just saying ‘we’re not going to do our jobs because we crave power’ was not a good look, at least in an election year, Republicans instead came up with a number of other excuses.
Fortunately, Republicans in 2020 have abandoned the pretense of political cover. While a few have tried to argue that maybe there’s some grand democratic meaning behind the bait-and-switch (notably Mitch McConnell himself, who has argued that it was actually the Republican midterm gains of 2014 that were why Obama wasn’t allowed to nominate a justice in 2016 but the Democratic midterm gains of 2018 don’t count because Democrats didn’t win the Senate), there’s been a growing willingness to admit that it’s actually just because Republicans are better at politics than Democrats are.
“To be clear, I wanted McConnell to refuse to hold hearings for Garland because I didn’t want garland on the court. I want the hearings now because I do want Trump’s pick on the court. That’s the way the game is played… There’s no shame in that. Stop being scared of playing the cards you’re holding.”The Daily Wire commentator Matt Walsh
For Democrats, there’s suddenly a lot of hand-wringing and hoping that just enough Republicans are in tough races that a confirmation before the election is unthinkable. That seems to be the case. Susan Collins (R-ME) and Lisa Murkowski (R-AK) have dropped the number of GOP senators willing to vote for a confirmation from a potential 53 to a potential 51, and Mitt Romney (R-UT), Chuck Grassley (R-IA), and Cory Gardner (R-CO) are all considered possible contenders to drop the number of potential votes below 50. Grassley had promised not to hold a vote if a vacancy occurred in 2020 and he was the judiciary chair, but (a) he’s not the chair anymore and (b) Lindsay Graham (R-SC) has already admitted that he was lying when he said you could hold him to a promise not to vote for a justice in 2020.
If, let’s say, Romney and Grassley stick to their guns (Romney’s gun here being I voted to convict the president of a crime and probably shouldn’t vote to give his appointee lifetime judicial authority), it could be up to Biden to make the nomination. Republicans might be okay with that if they keep control of the Senate, since they’ll just refuse to confirm his judges under the McConnell Rule.
Democrats, for whatever reason, seem to have a hard time grasping that this is really how the Republicans are going to play the political game now. There are not just two parties in the U.S. but two ideas of how government works, with one party grasping for every lever of power it can and the other still convinced it can write a strongly worded letter.