In light of his months-long campaign to block Senate hearings on Judge Merrick Garland’s nomination and tie the vacant Supreme Court seat to November’s presidential election it’s difficult to take Mitch McConnell seriously when he says Democrats have “brought the Senate to this new low.” In light of the importance precedent plays in law, it’s strangely fitting to see how much the rival parties are relying on history to explain away the part they played in a “nuclear” war over protocol. Senate Republicans like McConnell spent most of last year defending their stalling by citing the “Biden rule,” which Washington lore says demands that an election-year Supreme Court vacancy remain unfilled. The former Senate committee chairman went to the floor, mindful of a bitter battle over Clarence Thomas’ nomination, and called for “serious reevaluation of the nomination and confirmation process” that at the time would likely have been dominated by “partisan bickering and political posturing.”
Biden was not pressing his fellow Democrats to hold the seat open so that Bill Clinton could fill it; that’s a bet McConnell was willing to make, not to give “the American people a voice in this momentous decision,” but to hand the responsibility for picking a suitably conservative judge to a Republican president. What is lost amid lingering fury over the Kentucky senator’s ploy? The Senate’s duty to offer advice and consent to a president in the process of choosing a new Justice does not include an obligation to confirm any nominee. If the GOP voted to deny Judge Garland a promotion and had legitimate reasons for their decision the story would have ended there. It’s likely there wasn’t enough to hold their caucus together — otherwise, Senate Republicans would have been more than happy to put Judge Garland in front of a skeptical panel to air out everything that disqualified him.
Now the game has changed. A Republican is in the White House and Democrats have enough votes to keep him from putting a ninth Justice on the court. Activist groups like Indivisible are demanding vengeance; Moveon.org director Ben Wikler says that means “demonstrating to Democrats that their base doesn’t want them cooperating with Donald Trump.” The party of Andrew Jackson heeded their call and gathered the 41 votes needed to send Judge Neil Gorsuch back to the Centennial State. This is where half-truths would have a chance to sneak in because fighting them off means pulling apart sentences. Utah Republican Orrin Hatch stood on the Senate floor and correctly pointed out that no Supreme Court nominee has been “defeated by a partisan filibuster,” but there is precedent for using the measure in a confirmation battle — most notably when Lyndon Johnson tried to push through a new Chief Justice and was thwarted by a coalition of Southern Democrats and Republicans.
As the GOP squabbled over how to confirm Judge Gorsuch without 60 votes the trail of crime and payback got tougher to keep track of. Shortly after nominating the Colorado jurist to the high court President Trump encouraged the Senate’s majority leader to “go nuclear,” which brought cheers from talk radio and internet outlets, who were quick to remind their audience of Harry Reid’s 2013 decision to cut off debate over lower court nominees and push Republicans to return the favor. When Democrats tried to clarify their objections to Judge Gorsuch by quizzing him about abortion, Trump’s infamous visa and refugee restrictions, and same-sex marriage they echoed Republican complaints about Judge Garland. Democrats’ frustration with his refusal to play along was evident after they tried to politically disqualify Judge Gorsuch, so they moved on to branding the former appellate court clerk a corporate flunky and plagiarist.
An optimist would consider this showdown a sign of vigorous debate in a lively democracy, but that would reflect a higher regard for the average Washington lawmaker’s judgment under pressure. The jaundiced view? This will not be a one-off that senators can joke about over a round of suds at the local watering hole; the activists who forced this fight won’t let it end so easily. At the Capitol its short-term impact will be felt when the Trump administration tries to move tax reform or a retooled health care bill through Congress. Indivisible will flood the phone lines and press for another confrontation, which will likely be met with a similar drive for another rule change — again and again and again until the dueling footsoldiers tire, Trump leaves office or Congress refuses to play along. Whatever happens next, the rival factions will almost certainly blame their foes and be rewarded for it.
photo composite courtesy of nteb-mudflowermedia.com