THE SUPREME COURT AS PARTISAN TOOL
Even though the Supreme Court has been an active player in American politics — Bush v. Gore leaps quickly to mind — the process of choosing its members has been seen as mattering more than the partisan combat in Congress. With rare exceptions, nominees to the court have been largely insulated from the escalating political warfare over the judiciary, and have been approved.
Justice Antonin Scalia, a conservative standard-bearer, was confirmed with 98 votes. Ruth Bader Ginsburg, a liberal icon, got 96. Even Clarence Thomas, whose confirmation hearings marked a flashpoint in sexual and racial politics, drew no filibuster.
Now, however, partly as a result of its own actions, but more important as a result of increasing polarization in Washington and the nation as a whole, the court is devolving into a nakedly partisan tool. How did this happen? Some of the blame rests with the Democrats. Many of them over the years have played to their base by casting cost-free votes against Republican nominees. Republicans like to say that Democrats’ 1987 blocking of Robert Bork marked the beginning of the politicization of Supreme Court nominations, but Democrats did give Bork a vote. The polarization of the court itself, with a pronounced rightward swing among its conservatives, has also helped turn confirmations into political battles.
But the lion’s share of the blame now belongs to one man — Mitch McConnell, the Senate majority leader. In blocking even a hearing for Judge Merrick Garland, President Barack Obama’s moderate and eminently qualified candidate, as well as dozens of Obama nominees for other positions, he deeply degraded the nominating process. There was a time when the leaders of the Senate were responsible stewards of republican traditions and ideals. Not McConnell, whose determination to steamroll and humiliate political opponents exceeds any other consideration.
Which brings us — and the nation — to the unfolding mess in the Senate over President Donald Trump’s nomination of Judge Neil Gorsuch. On Monday, Senate Democrats secured the votes needed to filibuster Gorsuch’s nomination, a procedural mechanism the Senate minority party can use to stall or block a vote by the majority. Whether Democrats will or will not remains to be seen. But many of them are still furious, and rightly so, that McConnell and the Republicans stole the seat after Scalia died by denying Garland a vote for eight months.
For their part, the Republicans, who want to confirm Gorsuch this week, need 60 votes to overcome the filibuster. They’re a few votes short, so they have threatened a new weapon: using their 52-vote majority to eliminate the filibuster, allowing them to confirm Gorsuch with a simple majority, “up or down” vote. Such a move — known as the nuclear option — would end the filibuster not just for Gorsuch’s confirmation, but for all Supreme Court nominees. It would also mean that the only Senate votes still subject to the filibuster rule would be on legislation.
That leaves it to Democrats to consider whether the filibuster is worth saving. Whether legitimately outraged at McConnell’s treatment of the Garland nomination or opposed to Gorsuch on the merits, if they lose the filibuster now — as they will — then it is not available to use against another Trump nominee, who may be objectionable not only to Democrats but to a few Republicans, as well. Yes, the Republicans could possibly strip the filibuster away the next time, too. But surely having some slight chance of being able to deploy it to stop a renegade justice is better than having no chance at all. And the danger some Democrats appear to fear of seeming naive by clinging to a goal of bipartisan support for the court seems less acute than the certainty of their appearing ineffectual in a futile effort to block the Gorsuch appointment.
What matters, of course, is not some arcane voting process in the Senate. What matters is that Americans believe they are governed by law, not by whatever political party manages to stack the Supreme Court. That is what Mitch McConnell has driven the Senate to put at risk — a very great risk indeed — and it may, in the end, fall to the court itself to find a way to rise above the steadily encroaching tide of factionalism.