Of course, had Trump lost but the Republicans still retained their Senate majority, there is little doubt that they would still have put up a fierce fight against any judge nominated by Hillary Clinton. In any event, the Republicans followed FDR in putting forward an ostensibly principled justification when their aim was baldly result-oriented.
So the Republicans committed a personal wrong against a president and a distinguished federal judge, denying them elemental courtesies, but also an institutional wrong by refusing to put the nomination through the standard and constitutionally prescribed procedures. The president was entitled to a nomination, but the Republicans essentially nullified it: The naming of Garland was received as if, for all practical purposes, it had never occurred. The Senate dispensed with its “advice and consent” function. McConnell asserted it had no such duty in the last year of a president’s term, but there is no such norm or tradition, and he well knew it.
It is irrelevant to this larger point that adherence to process and engagement in debate may not have moved one Republican vote. The point about process is this: One never knows. And the absence of a public process allows politicians to minimize their accountability, to escape debate and justification, and to dodge a recorded vote or clear stand on the merits. By doing so, they deprive the public of all opportunity to hear the competing views, make a judgment about which of the parties in the conflict are behaving responsibly, and participate through opinion and pressure.
By shutting down the constitutional process altogether, on a transparently sham argument, McConnell displayed disrespect for the institution he leads and caused it harm. As Yascha Mounk has reminded his readers, political scientists “have consistently found [that] the survival of stable democracies has always depended on the willingness of major political figures to play by the basic rules of the game”—to “uphold and promote democratic institutions.” McConnell and his colleagues failed this test miserably.
The answer to the damage wrought by the McConnell ploy is not more of the same, but instead relentlessly opposing troubling nominees. Winning the case in the court of public opinion, as FDR learned, inevitably affects the direction of the Supreme Court. The Court began moving in his direction even before he could alter its composition with his own nominations. He had public opinion with him on the merits of his constitutional vision, but he lost that support when the issue became the means he devised to achieve it. Progressives who are confident that now, and especially more as the years go by, the political future lies with them should keep that in mind.
There remains the question of the Court’s expansive understanding and exercise of its power. It is a serious question, one on which there may be some ground for left-right concurrence. Criticizing the packing plan from a conservative perspective, Adam White argues that the true problem is that “all confirmation battles will be ugly so long as the Court asserts so much power over our politics.” He is right, and the problem is one that calls for discussion of reform, such as term limits and supermajority voting requirements in judicial review of legislative enactments.
It won’t be easy to get this discussion going: The Court has managed to fend off even the bid for cameras in the courtroom and the adoption of a code of ethics. This is always a challenge of instituting a genuine reform program, as opposed to playing the same game but trying to rig it; it is just harder.