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.
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.