Behind the Supreme Court Stalemate

The Republicans are angry—and both parties are beholden to special interests.

Carolyn Kaster / AP

Thirty-three minutes after the San Antonio Express-News reported the death of Antonin Scalia, I emailed several conservative consultants involved in past Supreme Court fights: “Can Obama get a replacement confirmed?”

The first reply came nine minutes later: “Absolutely not,” the GOP operative replied. “We won’t let them vote.”

I asked for clarification. Among this consultant’s clients is a group dedicated to moving the Supreme Court rightward on abortion. “You won’t let who vote?”

“We won’t let our guys vote,” he replied. “[President Obama’s] nominee will be dead on arrival.”

What I took from this exchange is that long before Scalia’s death, the game was rigged against Obama—or at least, that’s the impression that this GOP consultant and the others who replied wished to convey. They told me they had been game-planning the death of a Supreme Court justice for months. They declined to be identified, citing their clients' wishes to keep their obstructionist strategies under wraps until it’s in their best interest to disclose them. Even then, they’re likely to reveal their role only to the donors who support the groups. They considered several scenarios and strategies, all aimed at punting the next high-court pick to Obama’s successor, who they hope will be a Republican.

Some Republican senators didn’t get the message as quickly as I did. Chuck Grassley of Iowa at first told a local reporter he had no opinion on Scalia’s replacement. Then came the orchestrated outrage from special-interest groups: telephone, email, and social media demands that the Senate refuse to consider anybody nominated by Obama.

Texas Senator Ted Cruz, the darling of the professional right, declared that “we owe it” to Scalia to deny Obama. Soon after, Senate Majority Leader Mitch McConnell said the vacancy should be filled by “a new president.”

Grassley caved. “It only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court justice.”

In less time than it takes to play the Super Bowl, a small cadre of unelected GOP consultants had put the Senate in its place: “We won’t let our guys vote.” The puppet masters had brought their puppets to heel. As Dana Milbank wrote in today’s Washington Post:

But the people have already had their say. They reelected President Obama in 2012. And they elected a Republican majority to the Senate in 2014. That majority has every right to reject Obama’s nominee. But McConnell and his colleagues appear to be asserting that they won’t even consider a nominee—no hearings and no vote.

This is a grim commentary on the current state of dysfunction in American government. If Republicans refuse to confirm an Obama nominee, they will almost certainly break the record for the longest vacancy on the court since the court expanded to nine members in 1869. And that delay—391 days in 1969-1970, was because the Senate rejected two of Richard Nixon’s nominees, not because it wouldn’t take up any.

There was a longer vacancy—27 months—in the 1840s, as the nation slid toward Civil War. Are we really at a similar point today?

I think the United States is at such a point. I suspect it will be months, even years, before the Supreme Court is fully stocked. My pessimism is based on two assumptions: that the Republican base is angry and opposed to any accommodation with Democrats, and that the GOP isn’t the only party captive to its special interests.

If the roles were reversed and a Republican sat in the Oval Office, I believe Democrats would block the lame duck’s nominee. They might be more artful about it—they might give lip service to the confirmation process—but the result would be the same.

Late in President George W. Bush’s term, Senator Chuck Schumer said the Senate should not confirm another Supreme Court nominee under Bush “except in extraordinary circumstances.” He continued: “They must prove by actions—not words—that they are in the mainstream.”

Milbank calls that a “fine standard.” I would agree, if I believed that any nominee offered by any Republican president would ever meet Schumer’s definition of mainstream; if I hadn’t watched the Democratic Party move further left in the subsequent nine years; if I hadn’t watched the GOP move further right; and if I hadn’t watched both parties dissolve into petty recrimination and dysfunction.

More to the point, Schumer tipped his hand elsewhere in the July 2007 address. “We should reverse the presumption of confirmation,” he said at the American Constitution Society convention in Washington.

Oh, by the way: The ACS is a special-interest group devoted to pushing the judiciary in a more progressive direction. Both parties have their puppet masters.