The outrageous obstruction of Merrick Garland’s nomination to the Supreme Court — the 10-month-long stonewall by Senate Republicans that not only stymied the high court’s ability to do its job but effectively stole the nomination of a new justice from President Obama — is now delivering its rewards to the cynical politicians who carried it out.
Having denied Garland even a committee hearing from the time of his nomination in March until Obama was safely out of office, the GOP-controlled Senate is now smugly offering that opening to President Trump to fill. The new president, who has repeatedly promised to select a new justice in the mold of the late conservative Justice Antonin Scalia, has said he will announce his nominee Tuesday evening.
It’s hard to express how head-shakingly unfair this is. Trump will now have an opportunity to affect the balance of the increasingly polarized court for the next 30 or 40 years — influencing rulings on abortion, the rights of gay and transgender people, free speech, corporate and union spending on elections, labor issues, the separation of church and state, the ubiquity of guns, criminal justice reform and endless other hot button subjects.
But Trump never should have been handed this opportunity. The seat was Obama’s to fill subject to Senate “advice and consent,” and he fulfilled his constitutional responsibility in good faith, only to be kneecapped by a body that would neither advise nor consent but merely gummed up the machinery in a transparent effort to preserve the court’s conservative majority. The GOP’s feeble justification for its behavior — that an appointment made by a duly elected president was somehow illegitimate because he had only 10 months remaining in office — was believed by no one.
The Senate’s misbehavior affected more than just the court. It also constituted a new low in the tit-for-tat cycle of dysfunction in Congress, in which each side obstructs its opponents wherever possible even if that produces a stalemate that brings the operation of government to a halt. Working cooperatively across the aisle to solve the nation’s problems has gone out of fashion.
The Democrats have been put in a terrible bind. Do they take the Republican bait, declare the seat stolen and launch a filibuster against any candidate in a spirit of spite and vengeance? Or do they roll over, brand themselves patsies and allow Trump to appoint a Scalia clone or someone worse to fill the seat? What message do the Democrats send if they allow themselves to accept this theft supinely without exacting any punishment? How should they fight if the nominee is truly outside the mainstream? And what if he or she is a conservative who is well-respected and competent — what strategy makes sense then? It’s an awful predicament and it’s hard to see how it ends well.
Frankly, the Democrats are not in a terribly strong position. They don’t have a majority in the Senate, and though they can filibuster for a while, most Senate Republicans would sooner do away with the filibuster rule for Supreme Court justices than allow the seat to sit empty indefinitely. That’s the so-called nuclear option.
At the end of the day, Senate Majority Leader Mitch McConnell will probably win this round, thus ensuring that the long roll down the slippery slope of polarization and dysfunction continues at an ever accelerating speed. He should be, but presumably is not, ashamed of that contribution to history. His obstructionism exacerbated the weakening of governmental institutions and continued the erosion of bipartisan cooperation and civility. Yet if democracy is to work and the nation is to prosper, the political system must allow for compromise and rationality even among determined opponents.
For now, another Justice Scalia or someone even more extreme will probably be enstooled, potentially endangering the rights of women and non-whites, threatening backward movement on same-sex marriage and abortion, offering more protection for powerful businesses and less for the environment. Even in these difficult days, this disgraceful move by Senate Republicans to manipulate a U.S. Supreme Court seat for partisan purposes stands out as sad and egregious.
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