In hyper-partisan Washington, the Supreme Court could fade away

REUTERS/Gary Cameron
Senate Majority Leader Mitch McConnell, center, holding a news conference with fellow Republican leadership after their Republican party caucus luncheon on Tuesday.

All 11 Republicans on the Senate Judiciary Committee have doubled down on the idea of refusing to consider any Supreme Court nomination made by President Obama.

Senate Majority Leader Mitch McConnell had, of course, indicated almost immediately after Justice Antonin Scalia’s death that this was his plan. But he doesn’t directly control the actions of the Judiciary Committee. So the committee’s Republicans, led by Chairman Charles Grassley of Iowa, have released a letter, signed by all 11 of them, to McConnell agreeing with him that no Obama nominee should get even a hearing.

This isn’t much of a surprise, but in the days since McConnell first suggested the plan of stonewalling any Obama nominee, there has been at least some scuttlebutt that it might be more advisable to at least start the confirmation process and make sure that it doesn’t get anywhere until after the election when a new president will perhaps nominate someone else. In fact, Grassley had said a few days ago that he was open to holding hearings and wouldn’t decide about that until a nominee was named. So on the one hand, Grassley’s previous statement is now “inoperative,” and on the other hand, it pretty much settles the question of whether any Obama Supreme Court nominee will get a hearing.

This is unprecedented, but not unconstitutional.

The letter repeats the humbug that in refusing to consider a nominee they are honoring an 80-some-year-old tradition having to do with vacancies occurring in presidential election years. In fact, there are zero cases of  the Senate refusing to consider a nominee for a vacancy on the Supreme Court. Apparently, some Repubs are just going to keep saying that they are honoring a tradition that they are inventing.

On the other hand, the letter doesn’t waste a lot of time claiming that historical justification. And it does assert, accurately, that while the U.S. Constitution does require that a presidential nominee be submitted for “advice and consent” to the Senate, the Constitution does not require the Senate to give such consent and does not even require that it hold hearings.

The full text of the letter is here.

Obama has said he will nominate someone soon, and the senators can’t prevent him from doing so. On the other hand, the president has no power to compel the Senate or the Judiciary Committee to hold hearings.

New era

I’ve been suggesting for a while that we may be entering a new era in which Supreme Court nominations will be subjected to just as much partisan hardball as many other things in Washington. It has already become common in recent years for most Supreme Court confirmations to be subjected to highly partisanized hearings and votes, and both parties have engaged in this conduct. But there were still enough senators who adhered to an older norm of less partisan treatment for almost all Supreme Court nominees who got as far as the Senate floor to be confirmed, with the exception of Robert Bork, who was rejected in 1987 on a mostly party-line vote. But at least in that case, Democrats held hearings and claimed to oppose Bork for reasons other than the identity of the president who nominated him.

No Democratic senator has yet threatened to oppose confirmation hearings or to vote against confirmation of any nominees based simply on the identity of the president making the nomination. But if they did, or if both parties did it as a regular basis, they could say — as the current judiciary members have just said — that they are violating no law or constitutional requirement.

Writing for New York magazine, Jonathan Chait recently posted an excellent piece exploring what that possible future might look like. It was headlined “Will the Supreme Court Just Disappear?” and included these passages:

It turns out that what has held together American government is less the elaborate rules hammered out by the guys in the wigs in 1789 than a series of social norms that have begun to disintegrate. Senate filibusters were supposed to be rare, until they became routine. They weren’t supposed to be applied to judicial nominations, then they were. The Senate majority would never dream of changing the rules to limit the filibuster; the minority party would never plan to withhold all support from the president even before he took office; it would never threaten to default on the debt to extort concessions from the president. And then all of this happened…

… If Hillary Clinton wins in November and Republicans retain the Senate, they may feel shamed by their promises to let the voters decide the Court’s next nominee and give her a justice. Or maybe not — maybe some dastardly Clinton campaign tactic, or reports of voter fraud on Fox News, will make them rescind their promise. The Supreme Court could remain deadlocked at 4-4 for the remainder of her term, causing federal rulings to pile up and further fracturing the country into liberal and conservative zones with dramatically different constitutional interpretations. On some of the most contentious issues, there would be, effectively, no Supreme Court at all.

If Republicans win the White House and retain the Senate, Democrats would regard Scalia’s vacated seat as rightfully theirs and oppose any nomination. This will cause Republicans to abolish the filibuster altogether; then they will fill the seat, solidifying their control over all three branches of government. A world in which Supreme Court justices are appointed only when one party has both the White House and the needed votes in Congress would look very different from anything in modern history. Vacancies would be commonplace and potentially last for years. When a party does break the stalemate, it might have the chance to fill two, three, four seats at once. The Court’s standing as a prize to be won in the polls would further batter its sagging reputation as the final word on American law…

… The Supreme Court is a strange, Oz-like construction. It has no army or democratic mandate. Its legitimacy resides in its aura of being something grander and more trustworthy than a smaller Senate whose members enjoy lifetime appointments. In the new world, where seating a justice is exactly like passing a law, whether the Court can continue to carry out this function is a question nobody can answer with any confidence.

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Comments (23)

  1. Submitted by Neal Rovick on 02/24/2016 - 09:15 am.

    A little known Bork fact:

    Bork was promised a seat on the Supreme Court by Nixon for carrying out the “Saturday Night Massacre”. Nixon leaves rather quickly. Reagan then acted to fulfill the promise made to Bork. Opposition ensues. Surprise, surprise–and decades of outrage on the part of Borkites.

    So politics are no stranger to the Supreme Court.

    I think the best course is for Clinton to win, with a Democratic Senate, and nominate a constitutional law professor from Illinois by the name of Obama.

  2. Submitted by Neal Rovick on 02/24/2016 - 09:23 am.

    By the way, how would a couple of years of 4/4 decisions play in Republican-land ?

    • Submitted by Jon Kingstad on 02/24/2016 - 10:24 am.

      Split circuits

      The problem is that there is a double edged sword. The Supreme Court resolves the problem when you have conflicting decisions among the 11 circuit courts of appeal. Some of the most controversial cases have resulted in decisions where one circuit is affirmed and another reversed. That’s the problem Chait is describing.

      One thing Chait might be overlooking is that if lower courts no longer are not concerned that their decisions are going to be reviewed or if they are not reversed, this might change thinking on how those cases are decided. Judges, especially appellate judges, are highly egotistical and hate to be told they are wrong. A split might embolden lower court judges in one direction or the other. I believe that even ideological judges do tend to take their work seriously and will try to be fair and deal with the facts. In the long run, I think the sense of lower court judges to try to be fair and to deal more or less in reality will override whatever right wing ideology has gained them their positions in the first place.

  3. Submitted by Frank Phelan on 02/24/2016 - 09:33 am.

    Delay, Delay, Delay

    The speculation had long been that the next SCOTUS opening would be due to the departure of The Notorious RBG, she being the oldest member and having had some health problems. If she departs next, the court is back to a conservative majority, 4-3. That may well be part of what motivates Mitchell, et al.

    Also, big money GOP donors may well sacrifice the senate in favor preventing a liberal majority on the court. It would be easier to re-take the senate than SCOTUS.

    It sure seems like we’re playing with fire, all of us collectively.

    • Submitted by Eric Ferguson on 02/24/2016 - 01:00 pm.

      Playing with fire true

      …but not by choice. We’ve learned it takes just one party to break down social norms. The ideal would be for Obama to nominate someone qualified and not reasonably regarded as ideologically motivated, and the Senate to evaluate the nominee as an individual and bring the court back to nine justices. Since Senate Republicans have declared they won’t even consider a nominee from Obama, who has almost a year left, it seems the fire was handed to us like it or not. And what happens if Ginsburg does leave as long expected? It’s entirely conceivable Obama could have a couple vacancies to fill.

  4. Submitted by Clete Erickson on 02/24/2016 - 09:47 am.

    Term Limits

    Maybe it is time to put term term limits on supreme court justices. That might help take the huge controversy out of each new nomination regardless of political view. Right now Chief Justice Roberts could have a 40 year tenure as chief justice and in my opinion that is too long for one person to hold so much power over our lives.

  5. Submitted by Kurt Nelson on 02/24/2016 - 09:48 am.

    Let the voters decide

    The hapless Republican leadership keeps saying they want the public to have a voice in the decision, but the public doesn’t know anything about the Court, other than reading the random headline, or hearing the harrumphing from Faux news. Most people cannot name the Justices, let alone have read a decision, so why do they keep wanting the ignorant to have a voice.

    Over at Slate, Lithwick has an interesting take on how the Chief Justice will handle the potential for 4-4 ties (which will just affirm the lower court ruling, until some can be reargued, or the 9th Justice is confirmed).

    • Submitted by Neal Rovick on 02/24/2016 - 11:36 am.

      Let the voters decide…

      Except when it’s convenient to have the Supreme Court decide the winner…

      Except when there are too many voters of the “other” demographic…

      Except when there is a President of the other party…

      Except when there is an election that doesn’t go their way…

      For a party that claims to respect the Constitution, they certainly disrespect the democracy that is at the heart of the document.

  6. Submitted by beryl john-knudson on 02/24/2016 - 10:45 am.

    A non-functioning congress, the wrinkled robes of Justice?

    When Democracy and its trinity of watchdogs; checks and balances and all it promises or all it was so intended… becomes a mere board game and winning and losing, with its choice of party standards like ‘us’ not ‘them… it may be time to seriously question the credibility of those non functioning bench sitters; radical right who only essentially, represent themselves and their corporate interests?

  7. Submitted by Jim Million on 02/24/2016 - 11:02 am.

    Fade to Grey?

    Maybe it’s not such a bad prospect that SCOTUS might fade, at least somewhat.

    Perhaps far too much dependency is now placed in that last resort.

    • Submitted by RB Holbrook on 02/24/2016 - 01:23 pm.

      Only the Beginning

      It’s easy to be sanguine about the “fading away” of the Supreme Court. Those darned activist judges, anyway! What is less soothing is the notion that the decline of the SCOTUS could just be the first step in the decline of the democratic institutions that make up the foundation of our government and, to a greater extent than some may like to think, our culture and society.

      In the Chait article, reference was made to the political scientist Juan Linz. Linz wrote a great deal about the distinctions between parliamentary and presidential democracies. He concluded that presidential democracies are less stable than their parliamentary counterparts. He attributed the longevity of American government to governance by two weak parties that did not differ much on ideology. For decades, if not centuries, there was a loose consensus about how government should function.

      That loose consensus is gone. Members of Congress flaunt their inflexibility and willingness to disrupt things, even to the point of shutting down the government over a minor funding dispute. Now, the Senate Republicans have said they are willing to let the Supreme Court try and operate at less than full strength, perhaps indefinitely (anyone who thinks that a Republican-controlled Senate would vote to confirm a nomination submitted by President Sanders or President Clinton should seek immediate help for their drug problem).

      What’s next? No confirmation of any Presidential appointments, including cabinet officers and ambassadors? If the sole criterion for a vote is ideological purity, that is not a far-fetched idea.

      • Submitted by Jim Million on 02/24/2016 - 10:34 pm.

        A bit over the top here, I think

        Why are you responding to me, when your thesis seems to be a stand-alone comment?

        Why should we continue politicizing our courts system through appointment, then? Does this method not (as evidenced certainly now) promote manipulation of the lower Federal courts in hopes of getting a case elevated to SCOTUS? Does not much of that manipulation ultimately depend on the political/philosophical determinations of the various Supreme Justices making SCOTUS “conservative” or “liberal”? For that matter, do lifetime appointments create more constancy or more intractability over time?

        Perhaps the merits of cases taken up might be more closely or clearly considered. Perhaps more cases should be rejected or sent back down for further resolution. I’m not about to determine that scheme; however, I am advocating cleaning up a messy and highly political system of purported egalitarianism.

        As for your reference to parliaments, well, I cannot comment, having not read Linz. In any case, I don’t see the purpose of comparison. We are what we are. Parliaments are very very messy, as well, should you follow some of them. Spend some time tracking the EU.

        In any case, RB, your tangents here do not seem to originate from my observations.

        • Submitted by RB Holbrook on 02/26/2016 - 08:59 am.

          Why, oh why?

          “Why are you responding to me, when your thesis seems to be a stand-alone comment?” Because you seemed intrigued by the prospect of the Supreme Court fading away. Shoot, you try to engage in a spirited debate, and people get all in a state about it..

          How would we ever make the selection of the judiciary non-political? The only way I can think of would be to choose judges by lot.

          “Perhaps more cases should be rejected or sent back down for further resolution.” According to the Supreme Court, 7-8,000 petitions for a writ of certiorari are filed every year. The Court hears oral argument and renders an opinion in about 80.

  8. Submitted by Tim Smith on 02/24/2016 - 11:51 am.

    Goose and Gander

    It all started with the Rehnquist nomination. He received the most no votes ever. If only he had been more qualified, oh wait.Then came the infamous “Borking” and then Clarence Thomas who beat our Rehnquist for most no votes. Then Joe Biden, Chair of the Senate Judiciary committee, made a speech on the senate floor in 1992 where he declared that if there were an opening that year President Bush should not nominate someone and let the next president do it. He thought nominations in an election year should have a different set of rules. Hmmmm.

    • Submitted by Kurt Nelson on 02/24/2016 - 12:14 pm.

      And then

      there was Justice Scalia, confirmed unanimously, as was Ginsburg, not sure about Kennedy. Bork got what he deserved, no chair on the Court. The difference between a single Senator like Biden is exactly that, a single vote. The current Republican leadership is telling members how to vote, as a block – kind of a big difference, unless you don’t care for nuance. So not really a different set of rules

    • Submitted by RB Holbrook on 02/24/2016 - 01:03 pm.

      Honk, Honk

      Sorry, it goes back before Rehnquist was nominated. When Abe Fortas was nominated for Chief Justice, his nomination was filibustered (his appointment to the court as an Associate Justice had been approved by a voice vote). The pretext was that–horrors!–he had accepted speaking fees from sponsors who might someday have a case before the Court. The Scalia rules on ethics and conflicts of interest were not yet in effect. No one really thinks it was about the payments (although Fortas did resign under a different ethical cloud that was not mentioned in the confirmation hearings). It was payback for the Warren Court.

      Interestingly, Justice Fortas’s name was submitted to the Senate June of 1968, some two months after President Johnson announced he would not run for re-election. Back then, nominations in an election year were not considered remarkable. Hmmmm.

      It’s a mystery why President Nixon chose Rehnquist in the first place, as he seemed to hold him in contempt (he never did learn his name, and referred to him as “Renchburg”).

      Again with the Biden talking point. When I first read about that in yesterday’s paper, I pictured conservatives all over America, rubbing their palms and chuckling with glee: “NOW we’ve got them!” I don’t intend to waste my time with yet another response, beyond saying that then-Senator Biden was very wrong. The fact that Republicans rely on his remarks as anything shows the fundamental poverty of their thinking.

    • Submitted by Dennis Wagner on 02/24/2016 - 08:34 pm.

      Not goose not gander

      As an independent seems we aren’t getting our moneys worth from the “R”s “They get paid a lot of tax $ complain about them and now waste them, Do your job! Talk about welfare cheats, there they are smiling and still cashing those taxpayer checks!

  9. Submitted by Greg Kapphahn on 02/24/2016 - 01:29 pm.

    Some People Just NEVER Read the Whole Assignment

    If you listen to Biden’s now-infamous speech,…

    all the way to the END,…

    you’ll discover that what’s so widely been quoted by dishonest conservatives,…

    was a straw man he was setting up to KNOCK DOWN.

    His final conclusion was the exact OPPOSITE of what Sen. McConnell and the rest of the Republican cowards on the Senate Judiciary Committee have now done.

    • Submitted by Pat Berg on 02/24/2016 - 02:49 pm.


      Is there a transcript somewhere?

      And even without the apparent misinterpretation, the fact is, it was one guy’s opinion, not a rule. (Notice how everyone at the time jumped to follow his suggestion – not.)

      This whole little boy behavior by the Republicans “But he said a mean thing to me one time, so now I’m going to get him back and all his friends, too!” is beyond reprehensible.

      Hey Republicans – news flash! We’re not in grade school any more!

  10. Submitted by Connie Sullivan on 02/24/2016 - 03:29 pm.

    What no one’s mentioning yet is that, with 4-4 decisions in the offing at SCOTUS for a long time to come, our country will be full of contradictory rulings on highly controversial issues: one federal jurisdiction ruling one way on an issue, and another ruling a different way. Meaning that, say, abortion could again be differently treated in different parts of the U.S. Or guns could be allowed more freely here than there. Or is this just a non-lawyer’s fear of “letting stand” the lower courts’ rulings if the Supreme Court is tied?

    • Submitted by Pat Berg on 02/24/2016 - 04:16 pm.

      They don’t care

      The Republicans don’t care what kind of damage they do to this country, just so long as they do everything they possibly can to sabotage Obama’s “legacy”.

  11. Submitted by Jim Million on 02/24/2016 - 10:44 pm.

    Well done, Eric

    You certainly brought out the anti-Red rants today. Political confusion falls not like gentle rain, but as shrapnel on one’s veins.

    Never have I looked so forward to Thanksgiving as I do this specific year…

  12. Submitted by Jim Million on 02/25/2016 - 01:40 am.

    Time to breathe deeply

    SCOTUS has about three months left in its current calendar. (Don’t know how many cases not yet heard, or could be heard by 9th member now.)

    President must first nominate somebody, is looking around, has not yet nominated anyone.

    Then the Senate kicks in for its part.

    SCOTUS recesses in early June. Not back until October.

    Senate recesses in July, effectively not back until after the election.

    Election is early November.

    So there are maybe two windows to seat a new Justice: late Spring or October.

    It’s the President’s move first, regardless of rhetoric or political positioning by anyone else.

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