President-elect Trump is expected to nominate his choice to fill the current vacancy on the Supreme Court in the next couple of weeks.
Actually, that sentence conceals more than it reveals. First, it isn’t really “his choice.” In a sharp departure from the norm, Trump last year essentially delegated authority for selecting potential justices to right-wing groups like the Heritage Foundation and the Federalist Society. To curry favor with the extreme right, including the religious right, he took the unusual (and perhaps unprecedented) step of releasing a list of 21 people he could nominate, promising to limit himself to this list--one that was developed for him by organizations seeking to use the United States judicial system as a tool to impose a troubling ideology that threatens basic freedoms and empowers the already-powerful. More on that below.
Another problem with that first sentence is the phrase “current vacancy.” Yes, there is a vacancy on the Court, but there shouldn’t be. It is a longtime vacancy, nearly a year old. It exists only because Senate Republicans took the unprecedented step of refusing to consider President Obama’s nominee, D.C. Circuit Chief Judge Merrick Garland. The GOP did not even hold a hearing for him, as month after month after month went by. Judge Garland should have had a confirmation vote long ago, and since President Obama went out of his way to choose a consensus nominee, Garland likely would have been confirmed with overwhelming bipartisan support.
So Trump is in an unusual situation: Most presidents don’t take office with a Supreme Court nomination among the first items on their plate. But Trump has one only because the situation was manufactured by Mitch McConnell to deny President Obama the ability to fill the vacancy and allow Trump instead to fill it with someone on the far-right’s wish list.
So how should Senate Democrats approach the nomination once it’s made? Just as always: with a careful analysis of the nominee’s record, exactly as the Constitution requires. A justice should recognize that our Constitution enshrines liberty and equality, and that many of our nation’s most important laws were designed to empower people to exercise those rights.
A nominee who would write certain groups out of Equal Protection, who would go out of their way to construe civil rights statutes in a way that frustrates their purpose, who would turn a blind eye to the growing threat to our democracy caused by money in politics, who would find excuses to further undermine criminal defendants’ constitutional protections, who would bend the law and twist logic in order to take power from consumers and workers and give it to corporations that already wield more power than the Founders could have ever imagined ... such a nominee should not be confirmed. Senators would not only be within their rights to do whatever they could to prevent confirmation, but they would also be obligated to do so.
Should Democrats opt to filibuster an unqualified nominee, GOP senators would no doubt accuse them of blocking the nominee for partisan purposes. But Republicans are hardly ones to accuse anyone else of partisan obstruction. Their unprecedented refusal to even consider Merrick Garland was just the most visible part of a much larger scheme involving federal courts at all levels.
The story of the past eight years is one of the Senate GOP using every tool at their disposal to obstruct the confirmation process, even dragging district court nominees into their partisan fights for the first time. They completely changed the playbook on judicial nominees.
Even though they were the minority party for the first six years, they abused Senate rules in order to delay floor votes as much as possible. During Obama’s first term and into his second, the number of judicial vacancies skyrocketed, not because there weren’t nominees, but because Republicans blocked votes indiscriminately. Regardless of whether the nominees were for a district court or a circuit court of appeals, regardless of their records, regardless of anything said in their committee hearings, and regardless of whether Republicans supported or opposed them on the merits, all nominees found themselves part of a deliberately-created bottleneck designed to ensure a maximum number of vacancies for the next president (who they hoped would be a fellow Republican). The few times they agreed to have votes, most of the nominees were confirmed with strong Republican support.
Seemingly impossibly, things got worse when the GOP took over the Senate after the 2014 elections. During the 114th Congress, the Senate confirmed only 18 district court and two circuit court judges for a total of 20, the lowest number since the 82nd Congress of 1951-52 during the Truman era. By contrast, during the last two years of George W. Bush’s presidency, the Democratic-controlled Senate confirmed 68 of his judicial nominees.
Indefensibly, Majority Leader McConnell ended the year without allowing the Senate to vote on the 23 circuit and district court nominees who had been languishing on the Senate floor for many months, sometimes for over a year, after having been thoroughly vetted and approved by the Judiciary Committee. He allowed no confirmation votes after July 6 of last year.
Perhaps President Trump will do as Obama did and nominate a consensus nominee ... but it seems unlikely. Instead, Republican senators will demand that their violations of democratic norms last year be rewarded by giving them a pass to allowing an extremist to serve on the Supreme Court. But in this area as in so many others during the Trump era, we must be especially vigilant to protect our democratic norms if we want to protect democracy itself.