Republicans and the Supreme Court: Sometimes, the Bad Guys Win


A man and woman shake shands
Supreme Court nominee Neil Gorsuch meets with Senator Claire McCaskill (D-MO). (Courtesy of the office of Senator Clair McCaskill)

This past week, Senate Majority Leader Mitch McConnell (R-KY) — straight-faced and surrounded by his amoral colleagues — spat to a gaggle of reporters that it would be simply unthinkable for a party to blockade a nominee to the Supreme Court for political reasons!  How dare the Democrats threaten to filibuster the open seat on the Supreme Court hostage, he fumed.

​Clearly the irony in his statement was palpable, for it was under his leadership that the Republican-majority Senate waged war against their constitutional duty to consider the president’s nominee to a vacancy on the Supreme Court

​In March 2016, President Barack Obama nominated Judge Merrick Garland to replace the late Justice Antonin Scalia on the Supreme Court after weeks of careful deliberation. Obama, often logical and methodical to a fault, choose the dull and conventional Garland even though many leftists, likely including members of the Clinton campaign, were pushing for an exciting fresh-faced nominee, such as Judge Sri Srinivasan who would have been the first Indian-American to sit on the Court.

​Senate Republicans, led by the fanatical Majority Leader, preemptively snapped President Obama’s olive branch of a moderate consensus candidate in two.

Even before Justice Scalia’s body had been lowered into the ground, Senate Republicans were trampling on the strict constitutionalist’s warm body, refusing to even consider — or even meet with! — any nominee Obama put forth. ​

The Constitution is clear: the Senate shall provide “advice and consent” for the president’s nominee(s) to the Supreme Court. The Constitution leaves no room for ambiguity and no asterisked notation for Senator McConnell to use as justification for his unconstitutional power-grab. McConnell’s justification, that the American people should have input as to who sits on the court next, was always an absurd and plainly manipulative excuse. ​

Regardless, the 2016 presidential election proved that three million more Americans wanted a Democrat to nominate Scalia’s replacement. Additionally, the American people elected Obama to make these very decisions in the first place. ​

The shoddy rationalization behind Republicans’ unprecedented obstruction left them flip-flopping back and forth, flailing for an appropriate explanation. Could they not allow a vote on Garland because it was an election year? Or was it that the President had already nominated the maximum number of Supreme Court justice appointees Republicans would allow?

Moreover, ​in addition to Senate Republicans’ illicit maneuver, they were readying another reprehensible campaign to block any and all nominees to the vacant seat on the Supreme Court made by not just the 44th president, but by the 45th as well. Republicans flooded talk shows to rile up their base and gave impassioned presentations on the Senate floor reaffirming their intent to disregard this rudimentary constitutional obligation. ​

Moderate-leaning Senator Richard Burr (R-NC) remarked, “I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.” ​

Rabid ideologue (and supposed constitutionalist) Senator Ted Cruz (R-TX) left the possibility open as well: “There is certainly long historical precedent for a Supreme Court with fewer justices […] That’s a debate that we are going to have.” ​

And, of course, Senator John McCain (R-AZ) infamously pronounced, “I promise you that [Republicans] will be united against any Supreme Court nominee that [the president] would put up.” ​

Republicans did not oppose these hypothetical nominees because they subscribed to differing judicial philosophies, demonstrated unwelcome liberal biases, or had other offensive attributes (such as nefarious pasts). Rather, these nominees shared something more contemptible in common: being nominated by a Democrat — specifically, Hillary Clinton. ​

Republicans were so especially averse to a Clinton nominee that they expressed a willingness to forfeit their morality (or, really, discard the remains of a thinly veiled ruse to cover their explicit partisan exercise) and confirm Garland during Obama’s lame duck period.  This would have undeniably contradicted the entirety of the argument Republicans had fabricated as to why they could not bring a vote on Garland to the Floor. ​

The truth behind this charade is that Republicans could not stomach the thought of another Democratic appointee to the court; not even Judge Merrick Garland, a consensus, moderate, and mainstream candidate, passed their unattainable test.  For all Republicans cared, the Constitution and norms of our republic could combust as long as no Democrat was permitted to appoint another justice to the Court. ​

Nevertheless, F.B.I. Director James Comey, Russian President Vladimir Putin, and a minority of the American public freed conservatives of having to choose between a Clinton nominee and revealing, once again, that their argument of “letting the people choose” had no moral backing whatsoever. ​

The yearlong process of delegitimizing, polarizing, and undermining the bipartisan nature of “advice and consent” paid off for Republican obstructionists (Is the word “obstructionist” needed? Surely, by now, it is implied).  In other words, what was a dogged, pointed attempt to ignore their constitutional duty in favor of blatant partisanship was a success, as spineless, unethical, and unprincipled their strategy was; Merrick Garland’s nomination never did see a vote on the floor (Judge Garland has returned to his day job on the Court of Appeals for the D.C. Circuit) and President Donald Trump has appointed a new candidate to fill the position. ​

Despite this, Democrats will kick and scream and jump up and down, futile as it may be, for the ultra-conservative Judge Neil Gorsuch will be Justice Antonin Scalia’s replacement to the Supreme Court.

​Sometimes, the bad guys just win.

Yes, a conservative Court will come after your rights: your right to make decisions about your body; your right to marry whomever you love; your right to health care.  And that is the reason why your participation in our political system is so important.  

When next year’s election creeps into sight, do not idle and concoct excuses.  Drive to Nevada or Arizona (where two Republican senators are up for re-election) and canvass, make phone calls in support of Democratic candidates nationwide, and continue to speak up with friends, family, and online to demonstrate that we care deeply about our nation and that we are watching our representatives with enduring memories.

Senate elections are decided by thousands of votes.  Ten people that show up in each district can, and do, make a difference in the outcome and only two Senate seats need to be flipped in 2018 for the Senate to swing blue.  

The next time a president has the opportunity to appoint a Supreme Court Justice, we must ensure that Democrats are in charge.  The decision to approve or reject his or her confirmation will be ours to make, and we will be patient and unforgiving.  

Zachary Freiman PO ’20 is a prospective Music and Public Policy Analysis double major from Sleepy Hollow, NY. He dreams of one day meeting Oprah Winfrey.

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