As of Thursday, it is 218 days and counting since President Obama nominated Merrick Garland to replace U.S. Supreme Court Justice Antonin Scalia, who died in February. Since then, the Senate has taken no action on his nomination. None.
And judging by the actions taken by prominent Republicans this week and the constitutional theories they’re still clinging to, the public should have no confidence the situation will change anytime soon.
Let’s recap: On Monday morning, Sen. John McCain (R-AZ) promised a unified front of Senate obstruction against any U.S. Supreme Court pick Hillary Clinton makes, should she be elected president in November. By the end of the day, McCain was physically running away from reporters who pressed him on that statement.
The next day, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) tried to soften those statements, saying the Senate has a “responsibility” to consider any nominee—including any nominee put forward by Donald Trump, should he become president.
Senate Republicans haven’t even met with Garland. They certainly haven’t held hearings or a vote on his nomination. They’ve continued to hold open the seat as a possible Supreme Court nomination for Trump, even as they drop their endorsements of him for president left and right. If that’s any measure of how seriously they take their responsibility, then it should also be a measure of how seriously the public takes Senate Republicans’ promise—after McCain’s slip-up—that judicial obstruction ends after the election.
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In other words, not at all.
Grassley has defended Senate obstruction on the Garland nomination with a quirky theory that during an election year, the sitting president shouldn’t get to nominate a Supreme Court successor. That privilege and responsibility is saved for the next sitting president. It’s a theory born from conservative fevers over losing their majority on the Roberts Court, combined with a willingness to stand firm on a tight read of the Constitution.
Because it is a “living” document, the Constitution doesn’t set out the exact procedure the Senate must follow in confirming Supreme Court nominees. Article II, Section 2 of the Constitution is the appointments clause, and the first place to start in figuring out just what exactly Senate Republicans are doing with the Garland nomination. That provision states: “[The president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States.”
A close read of the text suggests the “by and with the Advice and Consent of the Senate, shall appoint” language means the Senate is the block to the president’s appointment power. That read would follow the overall constitutional theme of checks and balances, and support Grassley and Senate Republicans’ argument that by not acting on the Garland nomination, they are actually acting as a check on President Obama’s appointment authority. Furthermore, Republicans press, because the Constitution allows the Senate to more or less write its own rules for how it runs its business, there’s really nothing to force them to ever act on Garland’s nomination.
Basically, Senate Republicans have taken their ball and are going home.
It’s hard to see an exit strategy for Senate Republicans here, though—which McCain actualized by hustling away from the press, followed by his reported refusal to engage with their questions. Senate Republicans’ best-case scenario is that Trump wins the presidency; Republicans keep control of the Senate; and Garland’s nomination gets pulled for someone like Charles Canady, a justice of the Florida Supreme Court whose notable legal achievements include coining the term “partial birth abortion” and helping draft Florida’s criminal justice “reform” measure, which the U.S. Supreme Court would later find unconstitutional.
So. Hypothetically. Let’s say Trump doesn’t become president. Let’s also say that Democrats don’t gain control of the Senate. Should Republicans keep control of the the Senate, they have little incentive to compromise on obstruction. That was exactly the point McCain’s comments illustrate.
The Supreme Court has so far functioned decently with eight members, rather than nine. An eight-member Court in Whole Woman’s Health v. Hellerstedt struck as unconstitutional Texas’ restrictive anti-choice provisions, giving reproductive rights advocates a solid win. Before Justice Scalia’s death, that outcome wasn’t a given. And yes, the justices punted on the birth control benefit and the administration’s order halting some deportations, which is terrible. But there was also no guarantee those cases were safe “wins” for progressives either.
In other words, an eight-member Court is no worse for progressives than the full Court with Justice Scalia, and might even be a little bit better for progressives on social justice issues like reproductive rights and voting restrictions. But what about in the long term?
There is the very real possibility that if GOP threats hold true and they plan to block any nominees, including Garland, that during that time the Court will go down to seven members and even revert back to a 4-3 conservative majority, depending on which justice we would lose in my end-of-days hypothetical here.
There is no good historical model for us to look to then. At its inception, the Court was made of six members. But in contemporary history, the closest we’ve ever really come to the kind of constitutional crisis Senate Republicans are inviting was during the George W. Bush administration. That’s when Sandra Day O’Connor retired. Shortly after, Chief Justice William Rehnquist died. That left then-president Bush with two quick nominations to fill. After the brief circus that was the Harriet Miers nomination, the Senate moved quickly to confirm both Justice Samuel Alito and Chief Justice John Roberts.
Neither Alito nor Roberts are centrist judges. Both have long public records opposing and often advocating against basic civil rights, positions that appear all over their Supreme Court opinions and dissents. By every measure, both Alito and Roberts were more controversial partisan choices for the Supreme Court than Garland. But yet, Senate Democrats moved quickly to confirm them.
There’s a figure of speech from vaudeville, later made popular by Groucho Marx in his classic film A Night at the Opera: “Will it play in Peoria?” The phrase has become shorthand for the idea of appealing to “Main Street America.” The idea was that if a show was successful in Peoria, Illinois, which was at one point a main Midwestern stop for vaudeville acts, it would be successful anywhere.
Senate Republicans have turned the entire confirmation process into its own vaudeville act, complete with grifters and clowns. In a couple of weeks, we will see how well Senate Republicans’ strategy on the Garland nomination “plays in Peoria,” should they be faced with an incoming President Clinton and a vacant seat on the Supreme Court to fill. Do they then act to immediately confirm Garland? Or do they press their luck and continue to drag the process out through until the midterm elections in 2018? And if so, how do they justify their continued opposition to Garland—who, unlike Roberts and Alito, is a centrist and who was appointed with bipartisan support to the D.C. Circuit Court of Appeals?
These are the questions to focus on heading into the final weeks of the campaign. How Republicans answer will tell us a whole lot about how their plans to deal with the Supreme Court beyond 2016. Maybe Grassley’s comments do suggest that Senate Republicans are waking up to the fact that the Garland nomination is a political gift that they are squandering for no good reason. Maybe. Or maybe Grassley’s comments, when paired with McCain’s, show Senate Republicans beta-testing the talking points for their next round of judicial nominations’ obstruction to see whether or not that continued strategy is politically viable. In other words: Will it play in Peoria?