The fallout

Forget Robert Bork. The confirmation of Neil Gorsuch after the rejection of Merrick Garland marks the new high-water mark in the overt partisan politicization of the U.S. Supreme Court.

We’ve entered a brave new world in which the party that controls the Senate can now control court appointments. If the Democrats win the Senate while Donald Trump is president, there’s no way they’ll confirm any of his nominees, no matter how long he has left in his presidency.

The tale of how we got here is remarkable, and will be studied closely by historians.

It’s too simple to say that the process started with the Bork nomination, the first in which an otherwise qualified nominee’s constitutional philosophy was invoked as a reason to block confirmation. After that, George H.W. Bush had two nominees confirmed by a Democratic Senate, David Souter and Clarence Thomas. At the time, no one thought that the Senate could simply refuse to confirm any presidential nominee for purely political reasons. The idea was simply unimaginable.

Souter and Thomas were the last two nominees to be confirmed by a Senate controlled by a different party than the nominating president. But that wasn’t because the idea of partisan blockage had been born.

Rather, the explanation is mostly a matter of political coincidence. The six justices confirmed after Thomas and before Gorsuch—two each by Bill Clinton, George W. Bush and Obama—were all filling openings that were created while the president and the Senate majority were of the same party.

And while some of those openings may have been timed by retiring justices to give the president a chance to nominate their successors, it isn’t true of all of them. Chief Justice William Rehnquist died in office. And Justice Sandra Day O’Connor retired because her husband was ill. So what changed? Part of the answer is the

Bush v. Gore case, which dramatized how political the Supreme Court had become.

But a more significant answer must surely be the erosion of the idea that any aspect of the Senate’s agenda should be devoted to the public good rather than partisan advantage.

In past eras it would have seemed disreputable for senators to announce that they were using their constitutional power to block nominees purely to shape the composition of the court.

Today, however, senators have realized that the public won’t make them pay a price for such obstructionism. Indeed, they might even be punished by the ideological base of their party for failing to obstruct a nominee from the other side.

The upshot is that control of the Senate is now a winner-take-all proposition for Supreme Court confirmation. I fully expect that, for the foreseeable future, if the president and the Senate majority don’t come from the same party, there will be no confirmations at all.