The past few days have brought a striking moment of clarity to Republicans’ cynical, campaign-season obfuscation around their real strategy for the Supreme Court. So permit us to borrow a phrase from that long-ago primary season: let’s dispel with this fiction that Republicans meant what they said about letting the voters speak when it comes to shaping the Supreme Court. They didn’t.
In fact, Sen. Ted Cruz has now confirmed what Sen. John McCain let slip last week: the Republican blueprint for a Hillary Clinton presidency is to obstruct and blockade the confirmations of Supreme Court nominees.
Seen through that lens, the unprecedented GOP obstructionism of President Obama’s nomination of D.C. Circuit Chief Judge Merrick Garland to the Supreme Court looks like a mere prelude to the nastiness that could come. And the promise to “let the voters speak” is increasingly looking like one of the many whoppers delivered in the exceptionally awful campaign season about to end.
It also looks like no coincidence that the conservative press and blogosphere are heating up with opinion pieces suggesting that a shrunken Court can work just fine. Only days before Nov. 8, a last-ditch game plan is emerging on the right: Kneecap the federal judiciary, burn a hole in the Constitution and forget all about Senate Majority Leader Mitch McConnell vowing in February, “[T]his vacancy should not be filled until we have a new president.”
The Senate should have acted long before now on Judge Garland’s nomination. Here is what AFJ wrote in February, shortly after Justice Antonin Scalia’s death:
“Without question the Supreme Court should be at the center of this election, and a new vacancy puts it there. Americans deserve to know what kind of justices a candidate would appoint, and the 2016 elections will have an enormous impact on the Court’s future. But what this election will not decide is who gets to replace Justice Scalia. That happened in 2012, when the American people elected President Obama to another four-year term that still has 11 months remaining. Once the president nominates, the Senate must take seriously its constitutional obligation to give that nominee a fair hearing and a timely vote. They owe it to Justice Scalia and his philosophy of obligation over outcome. And as stewards of our democratic institutions, they owe it to the American people.”
The Republican-controlled Senate failed utterly, however, and Judge Garland’s nomination hangs in limbo – as do scores of others at lower levels of the federal court system.
Today, a cynical, partisan power grab has trumped principle, and it could get worse. McCain’s recent remarks about stonewalling all of a president’s Supreme Court picks have escalated threats of obstructing judicial nominees to a destructive new level. Although his office walked back his remarks, the idea he floated would mean no Senate hearings – ever – for Garland, the same judge who McCain once voted to confirm for the D.C. Circuit. The hypocrisy is shameful.
Meanwhile, right-wing pundits have lauded McCain and upped the ante, even suggesting that no federal judicial nominees, at any level, should be confirmed during a Clinton presidency.
On Thursday, the White House decried Republican threats to refuse to consider any of Clinton’s Supreme Court nominees if she is elected and warned of “the same kind of dysfunction that has infected Washington for the last six years.” Cautioned Sen. Patrick Leahy, senior Democrat on the Senate Judiciary Committee, “It should be alarming to anyone who cares about the fair administration of justice, and the integrity of America’s judiciary, that some Republicans are already seeking to undermine the outcome of the upcoming election and further prevent our independent judiciary from fulfilling its constitutional role.”
Right after the election, it’s imperative that we allow the next president to govern fairly and avert a system broken by hyperpartisan warfare. For the Senate to support democracy and halt the standoff over judges would be a good starting point.