Analysis Law and Policy

Where Democrats’ Failure to Fight for the Supreme Court Vacancy Leaves Us Now

Jessica Mason Pieklo

In quitting their battle for the nomination of Merrick Garland to the Supreme Court, Democrats handed Republicans the victory of a lifetime.

The nomination of D.C. Circuit Judge Merrick Garland to the U.S. Supreme Court officially expired with the closure of Congress on Tuesday, leaving conservatives and President-elect Donald Trump with a vacant seat to fill.

So this is where we are at in the beginning of 2017. Instead of a centrist, level-headed justice, we are facing potential nominees who represent the most conservative range of judicial ideologies, thanks to Republicans’ thievery of the seat from the sitting president.

It didn’t have to be this way. For example, President Obama could have attempted a recess appointment—which is how President Eisenhower appointed Justice William Brennan in 1956. Such an appointment would still be subject to Senate approval eventually; in Brennan’s case, he was swiftly confirmed by a bipartisan Senate once Congress came back into session. Given the unprecedented blocking Garland already faced, there was absolutely no reason to think the same would have happened with him. But that doesn’t mean both President Obama and Democrats—who could have pressured both the president to be bolder and Senate Republicans to do their jobs—shouldn’t have tried.

Instead, President Obama took the more principled position. Rather than force a potentially messy political showdown with Senate Republicans, he let Garland’s nomination expire. That Obama took the high road is not surprising. His presidency largely has been marked by being reasonable in the face of unreasonable conservatives at every turn. This strategy is disappointing, however, when it comes to court appointments including and beyond the Supreme Court: Even though the Obama judicial nominations that managed to get confirmed did much to diversify the federal bench, the federal judiciary itself never appeared to be a top priority of the president as he let so many of his nominations languish. The consequences of this moderate strategy with regard to pushing judicial vacancies means that Trump gets at least one Supreme Court appointment during his presidency, and conservatives, again, get an opportunity to further mold the federal bench into an institutional offshoot of the Republican Party.

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The rumored leading candidate for Trump’s first Supreme Court nomination is Judge William H. Pryor Jr. of the Eleventh Circuit Court of Appeals. Here’s a fun fact about Judge Pryor. He was originally a recess appointment to the federal appeals court by then-President George W. Bush. This was after Senate Democrats had successfully blocked Pryor’s nomination to the court on the grounds he was too conservative and as part of a larger fight over the use of the filibuster on presidential nominees. Senate Republicans and Democrats eventually struck a deal, approving Pryor’s nomination and keeping the filibuster in place.

Fast forward to the Garland nomination, when Senate Democrats have largely gutted the filibuster for all but Supreme Court nominees. And when given the opportunity to make Republicans blink on their strategy of obstructing Garland by pushing for a recess appointment similar to Pryor’s, it was Democrats who faltered.

Good job, Democrats, because now we must consider Pryor’s horror-show record as a potential Supreme Court nominee. He’s referred to Roe v. Wade as an “abomination” and called for its reversal. He’s frequently criticized the federal courts for imposing mandates on states to desegregate schools, to protect abortion rights, and to maintain the separation between church and state by excluding prayer from public schools.

Another potential Trump nominee, meanwhile, is Judge Steven Colloton from the conservative Eighth Circuit Court of Appeals. Colloton isn’t as well known as Pryor, but just as conservative and dangerous to progressive causes.

In addition to being a strong proponent of capital punishment and distinctly anti-Affordable Care Act, before being a judge on the Eighth Circuit, Colloton worked closely with special prosecutor Kenneth Starr on the impeachment efforts of then-President Bill Clinton, which would also make him a favorite of the “lock her up” Trump constituency. Additionally, Colloton comes from Iowa, which makes him a favorite of Senate Judiciary Chair Charles Grassley (R-IA).

Colloton isn’t the only potential Trump nominee from the conservative Eighth Circuit Court of Appeals. Supreme Court contender Raymond Gruender also comes from the federal appellate district that would have upheld both Arkansas’ 12-week abortion ban and North Dakota’s six-week ban. Gruender himself authored a decision that upheld a current South Dakota law requiring doctors to falsely tell abortion patients that if they have an abortion, their risks of suicide and breast cancer increase.

The overwhelming number of justices on Trump’s short list are men. However, Seventh Circuit Court of Appeals Judge Diane Sykes‘ name has been floated to fill the seat. Originally a member of the Wisconsin Supreme Court, Sykes is a conservative favorite for her role with Gov. Scott Walker’s administration in molding the Wisconsin courts into the conservative institution it is today. Sykes is also a big proponent of voter identification laws. This would help the administration in its coming fights from progressive groups, should it and Congress institute the national voter ID requirement Trump and his advisers have suggested.

Despite rolling over on the Garland nomination, Senate Democrats have now vowed to fight nearly any Trump nomination. What that fight would look like is not entirely clear. Perhaps Senate Democrats could argue the seat should remain open for the next president to fill since Trump failed to win the popular vote, thereby making him a lame duck president for the duration of his four years. It’s the logical extension of the argument made by Senate majority leader Mitch McConnell when he announced that Republicans wouldn’t consider any nominee President Obama put forward. Even now Senate Democrats are being more reasonable than that, by suggesting they’d consider a Trump nominee, just not the ones whose names have been floated so far.

There is also the chance that Senate Democrats could Bork a Trump nominee.

In 1987 then-President Ronald Reagan nominated Robert Bork to the Supreme Court. Bork was a noted conservative who had promised to overturn Roe v. Wade if confirmed, and liberals had their sights set on his nomination immediately. Thanks in large part to an immediate, passionate pushback by the late Sen. Edward Kennedy (D-MA), popular sentiment, including among Kennedy’s Senate Republican colleagues, turned away from Bork. It ultimately tanked his nomination, paving the way instead for the more moderate Anthony Kennedy. In other words, Democrats could Bork a Trump nominee by pushing public opinion, provided they manage to find the pulpit and backbone to do so.

Can Senate Democrats pull off either? Let’s hope so. Otherwise, we’re looking at decades of irreversible damage to the federal courts and this country because Democrats chose to walk away from a nomination when they should have chose to fight.

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