There are a lot of interesting questions about the possibility that the President will appoint Judge Sri Srinivasan to replace the late Justice Antonin Scalia on the Supreme Court. For example, what happens if the D.C. Circuit has not yet voted out the net neutrality case? If Srinivasan is nominated and confirmed, would he be able to participate in an appeal of the net neutrality case? I, however, do not propose to answer either of those questions here.
No, I’m going to take a moment to urge Republicans to do the right thing and follow the Bork precedent of which they make so much — have a vote and reject a nominee you don’t like. That’s what the Constitution says ought to happen, and it’s a perfectly legitimate thing to do. The meaning of “with advice and consent of the Senate” has changed a bunch over the years, but it is clearly intended as a restraint and means of forcing cooperation between the Senate and Executive, as discussed by Hamilton in Federalist No. 76. (Hamilton thought the power to reject appointments would be little used. Unfortunately, George Washington was right about the corrupting influence of party factionalism.)
So why have Senator Mitch McConnell (R-KY) and Senator Chuck Grassley (R-IA), the Chairman of the Judiciary Committee, refusing to hold even a hearing on the as-yet-unnamed Obama Appointee? Fear. They cannot trust their own party to toe the line, especially the 8 Republican Senators facing difficult re-election fights in swing states.
While the check on the President is the need for advice and consent of the Senate, the check on the Senate is that they do their work openly, with each member accountable to their state. If Republicans really believe that “the people deserve to decide,” they would vote to reject the nominee and let “the people decide” if they approve of how their Senator voted. But of course, that would mean letting the people actually talk to their Senators while considering the vote, and potentially voting against those Republican Senators who disappointed their independent and swing-Democratic voters.
So the GOP elite leadership have conspired once again to take matters out of the hands of the people. Not by following the Bork precedent, which got a floor vote. Not even by filibustering the nominee, as the combined Republican/Dixicrat alliance did for Abe Fortas. No, the GOP leadership have such little trust for their own party, and the voters, that they will not even let the matter come to the floor.
More below . . .
So What Happened With Bork Anyway?
I’m old enough to remember the actual Bork nomination fight. Reagan had already nominated several nominees, notably Sandra Day O’Connor and Antonin Scalia. Both were in the mold of what one expects when a Republican is President and Democrats control the Senate. Both were well qualified and of impeccable credentials. Scalia’s opinions from his years on the D.C. Cir. and his writing as a law professor left no doubt as to views on the hot-topic issues of the day: notably abortion, the 4th Amendment right to protection against unreasonable search and seizure, and his overall reading of the Constitution as an “originalist” rather than the “living document” theory developed by Warren and Burger and championed by Brennan. Both O’Connor and Scalia received comparably little opposition and received floor votes, passed with large majorities.
All of this made the nomination of Judge Robert Bork, also a Judge of the D.C. Circuit, surprising to outsiders in its intensity. But while most folks involved in politics today were too young then to remember the last set of contentious Supreme Court nominees (under Nixon), Bork’s rejection was hardly unprecedented. Richard Nixon had seen several of his Supreme Court nominees rejected by bipartisan majorities or derided in the press and the Senate as unqualified. Additionally, while few people today remember the “Saturday Night Massacre” — let alone Bork’s role in it as the man who actually fired Archibald Cox — many of Bork’s opponents at the time remembered this role quite clearly.
What marked Bork’s nomination as a radical departure from precedent was not the debate or his ultimate rejection. What marked Bork’s nomination fight as a radical departure was (a) the mobilization by grassroots organizations to oppose the Supreme Court nominee, and (b) the very public fight in televised hearings and floor votes. Also of note was the intensely partisan nature of the opposition. Only 6 Republicans joined their Democratic colleagues in voting against Bork, while two Democrats voted in favor. (Again, it’s worth marvelling how standards have changed. These days, 6 Rs voting with Ds would be hailed as a bipartisan breakthrough.)
It is fair to say that Bork’s nomination set a new standard for opposition to the nomination of Supreme Court justices and a new role for outside organizations. It is even fair to say that it marked a politicization of the nomination and confirmation process unseen since WWII. And, ever since, the politicization, mobilization of outside groups, and drawn out confirmation processes have been part of nominating and confirming Supreme Court justices. Additionally, we have seen the increasingly partisan nature of confirmation votes. Because once it becomes established as the norm that Supreme Court nomination is inherently partisan, rather than very rarely partisan, the partisan nature becomes routine.
Advice And Consent Of The Senate.
Whether or not anyone approves of the fact that Hamilton’s “powerful, though in general, silent operation” of requiring Senate approval has now become a full throated roar, it fills the role provided by the Constitution. We may argue whether the Senate should respect the popular election of the President and limit its examination solely to qualifications, or whether the Senate should — especially in times when the country is split along highly partisan lines — vote in accordance with the dictates of party and party philosophy.
But this requires the actual courage of one’s convictions. It means actually holding a vote, something Senators facing reelection on a statewide basis may not want to do. As a result, we are increasingly seeing an effort at a procedural dodge, invoking both the Bork precedent that it is the Democrats fault for “politicizing” the Supreme Court nomination process, combined with the argument that “the people should decide” by waiting until a new President is elected and installed (without, of course, promising to confirm a Democratic nominee in the event that “the People” chose another Democrat to follow Obama).
Wait, What About the Whole Abe Fortas Thing.
In 1968, fearing that the country would elect a Republican to follow President Lyndon B. Johnson, Supreme Court Chief Justice Earl Warren offered his resignation so that Lyndon Johnson could pick a successor. Johnson nominated Abe Fortas to take Warren’s place (and Homer Thornberry to succeed Fortas). Immediately 19 Senators demanded that Johnson hold off on naming a successor until after the election. Ultimately, the Fortas/ Thornberry nomination fell to a filibuster on the floor. Interestingly, although only Republicans had promised to filibuster, a handful of southern Democrats (who opposed Fortas’ civil rights jurisprudence) joined them.
As Amy Howe at SCOTUS Blog has pointed out, the Fortas case did not leave the Supreme Court with a vacancy. But perhaps more importantly here, the filibustering Senators did their work in public. They wagered that Earl Warren’s playing politics with the seat would prove more offensive to the public then refusing vote. As it happened, they were right. But even if they had been wrong, they did took the risk up front by filibustering publicly.
There are many distinguishing features between the current flat out refusal by the GoP to hold even a hearing on the as yet unnamed Obama nominee and the Fortas Filibuster. I will focus on just one. Those who opposed the Fortas/Thornberry nominations had the courage of their convictions to do so in public.
Why Republicans Won’t Even Have A Hearing.
Republicans hold the majority in the Senate. They do not even need to resort to a filibuster. If they believe that the as-yet-unnamed Obama nominee would shift the Court in ways they don’t like, they may exercise their constitutional prerogative to reject the nomination. That is, after all, what other Senators have done in the past. They can even hold two votes, one to cut off debate and the other to confirm or deny, just like they did when Alito got confirmed. But they won’t. Why not?
Answer: Doing so would put the handful of Republican Senators at risk for reelection. For Senators in swing states like Kelly Ayotte (R-NH), it would be very difficult to resist constituent pressure to vote against (or even filibuster) a qualified nominee. Voters in the more “purple” swing states — like NH and Wisconsin — generally pride themselves on not just toeing the party line. Republicans in swing states risk alienating voters if they vote a Supreme Court justice on a conservative party line vote. And the Republican leadership risks getting an Obama nominee if enough Senators from swing states yield to constituent pressure.
So, despite holding a majority, and despite a clear path to rejecting a nominee, the Republican leadership does not dare even hold a hearing. This makes the public face of refusal McConnell, who won his last election in 2014 quite handily over what was supposed to be a significant Democratic challenge, and Chuck Grassley (R-IA). While Grassley is up for re-election and Iowa is something of a swing state, Grassley has served since 1981 and is considered much safer than several of his other Republicans. At risk Senators like Ayotte get plausible deniability, and don’t have to make a painful choice between the Republican base and the significant independent voters in their states.
The Politics of Cowardice.
McConnell and Grassley control the schedule. But they should not be allowed the luxury of pretending this conforms with some higher principle of democracy. This is the cowardice of the elite, robbing the electorate of its voice to make its preference known to Senators at a time when those Senators are most required to listen to their voters. If McConnell and Grassley really wanted to let the people decide, they would hold hearings and a floor vote before the November election, so that the people could have their say on whether or not they approved of the votes of their Senators.
But McConnell and Grassley fear what the people would say, and how the members of their own party would respond. In what has become the standard operating procedure of the party elite, they have simply chosen to take the decision out of the hands of their own party members to short circuit any accountability these members have to their voters. If Republicans want to show the courage of their convictions, let them follow the “Bork precedent” and hold a floor vote. Anything less is not the politics of populism, but the politics of cowardly elites.
Stay tuned . . . .