“If you keep on blocking judges from getting on the bench, then courts cannot issue decisions,” President Obama said Thursday, in response to deadlock in the Supreme Court over his use of executive authority to liberalize immigration laws. The president blamed the defeat on the refusal of Republican senators to consider his nominee to replace the late justice Antonin Scalia. “That may have been the strategy from the start,” he went on, “but it is not a sustainable strategy. It is a strategy that will be broken by this election. Unless their basic theory is we’ll never confirm justices again.”
I doubt that’s the theory behind Senate majority leader Mitch McConnell’s decision-making. But I also am beginning to wonder whether the president is on to something. The conventional wisdom, shared by me, is that the Republican stonewalling of judicial nominee Merrick Garland will last until Election Day, at which point one of two things will happen. Donald Trump will win, the president will withdraw Garland’s name from consideration, and the next Senate will take up Hulk Hogan’s nomination in January. Or Hillary Clinton will win, and after her inauguration Garland or some other choice of hers will be confirmed. Let’s stipulate that these are the most likely outcomes.
But what if we’re wrong? What if the Republican stonewall persists even after Clinton wins in November? What if Trump wins and the Democrats block his nominee indefinitely? Theoretically the nominee of any president could be denied a seat on the Court for as long as the opposing party has the votes to sustain a filibuster.
Granted, in the event of an extended vacancy on the court, majority leader Chuck Schumer likely would change the rules of the Senate to allow an up-or-down vote for President Clinton’s nominee—the so-called nuclear option. But imagine a scenario where the 2016 election results in the same political configuration as today: a Democratic president and a Republican Congress. What incentive would McConnell have to confirm a liberal justice then?
I don’t think he would have any. On the contrary: The incentives run in the other direction. The deciding vote on the Court has become so important, and the country so polarized, that the cost to either party of handing a majority to its adversary is too high to bear. It’s an unanticipated consequence of the outsized role the judiciary plays in our national life: The Supreme Court has become so influential that the legislative branch now has every reason to reduce its strength, and thereby its power, by not allowing new members to don the black robes.
No senator, Republican or Democrat, wants to green light the other side’s agenda. More than ideology is at work here. This week the Pew Research Center revealed that, for the first time in nearly a quarter century of surveys, “majorities in both parties express not just unfavorable but very unfavorable views of the other party.” Majorities of both parties say the reason they joined the Republicans or Democrats is because the other side’s policies are “bad for the country.” The worse your view of the other party is, the likelier you are to say its policies “threaten the nation’s well-being.” Cross-party friendships still exist. But Pew found that such relationships depend on one’s attitude toward the other side. Basically, we hate each other’s guts.
These results won’t surprise observers of the presidential contest. In recent weeks Hillary Clinton has said that Donald Trump is an unstable charlatan who will endanger and bankrupt the country, while Trump has responded that Clinton, the world’s biggest liar, has used government to enrich herself while murdering thousands and importing a “Trojan Horse” of sharia-loving Muslim immigrants. The animosity extends down ballot. When the Senate rejected Democratic gun control proposals that would not have stopped the Orlando attack, Democrats accused Republicans of helping terrorists buy guns, and occupied the House floor in protest for 25 hours. Why would these same people confirm their ideological opposites to lifetime appointments on the nation’s highest court?
A Scalia replacement would be instrumental in deciding the fate of an individual’s right to keep and bear arms, in determining the boundaries of religious freedom, the extent of LGBT and abortion rights, the nature of political speech and campaign finance, the strength of labor unions, the extent of congressional delegation to executive bureaucracies that regulate the environment, the workplace, private property, the schools, and much more. The power of the appointment can be seen in the reaction to the immigration decision: It was not only the president’s authority that was in question but also the legal status of millions of illegal immigrants. With so much at stake, it seems reasonable to conclude that his replacement will take the bench only under conditions of unified government.
Especially because the price of obstruction is so low: Refusing to confirm Merrick Garland is not the same as shutting down the government before Obamacare goes into effect. For one thing, the operations of the Court are not affected in a way that can be easily portrayed on the nightly news. There may be more ties allowing lower-court rulings to stand. But this outcome does not make voters’ blood boil like closing national parks does. It’s not the fate of Garland that will drive voters this November but the fear of losing their rights, their possessions, their entitlements, their country, their families.
Ironic: Throughout his career Justice Scalia warned against an overreaching judiciary that replaced democratic judgments with its own. Because his warnings were not heeded, the Court grew into a leviathan that touches all aspects of American life, determines where self-government ends and rule by bureaucrats begins. Yet the prestige of the institution—just how big it had become, how much control of it mattered—could not be revealed fully until Scalia died. And now that he’s gone, it’s possible, not likely but possible, that the refusal to confirm his successor inadvertently will limit not only the Supreme Court’s numbers but also its power.