Democrats Protested in the Wrong Chamber

The Supreme Court’s deadlock on immigration suggests that the protest should have been in the Senate, not the House.

Joshua Roberts / Reuters

Speaking on Thursday to reporters, some 90 minutes after the Supreme Court deadlocked on its ruling over his executive actions on immigration, President Obama offered this assessment: “The Court’s inability to reach a decision is a very clear reminder of why it’s so important for the court to have a full bench.”

The president was referring, of course, to his nomination of Judge Merrick Garland to the Supreme Court, to fill the seat left empty after the passing of Justice Antonin Scalia. Garland—who just three days ago won an assessment from the American Bar Association so sterling that it included someone saying, “He may be the perfect human being”—is not a controversial candidate. He has won praise from Orrin Hatch and Jeff Sessions, and even from the chair of the Senate Judiciary Committee, Chuck Grassley—the architect of Garland’s limbo.

And yet, as the president pointed out, Republicans in the Senate have been delaying his nomination indefinitely. Though his name was put forth nearly three months ago, most GOP senators (save for the ones facing tough re-election battles) have refused to meet with him. The consensus, on the right side of the aisle, seems to be that it is the next president’s job to fill the vacancy (neverminding that the GOP’s presumed nominee is someone who presently gives them considerably more heartburn than Merrick Garland ever might).

As a result, the court has been absent a critical, tie-breaking vote. With stakes as high as they’ve ever been, the rulings of the Supreme Court have taken on particular urgency—as on Thursday morning, with major cases on affirmative action and immigration. Without a ninth justice, tied decisions necessarily uphold the rulings of the lower court: in this case, the U.S. Court of Appeals for the Fifth Circuit.

The president said his administration will continue previously announced selective deportations, but would otherwise “abide” by the ruling of the Fifth Circuit. Nor, he confirmed, would the White House make any further attempts to amend immigration policy through executive privilege. In practical terms, a district judge has effectively determined national immigration policy. Such is the reality of an eight-seat court unable to establish uniform law.

At the very same time that this was unfolding, Democrats were staging the end of their 25-hour sit-in on the House floor, protesting inaction on gun-safety reform. It was an exercise in catharsis more than legislating, but one that was welcomed broadly by outside progressives, whose anger over Congressional impotence on the issue has reached fever pitch.

And yet, the dueling spectacles offered a pointed choice: Were the Democrats actually protesting in the wrong chamber?

As Chris Hayes tweeted:

It’s hard to fault House Democrats for making their exasperation known, but a better use of political capital might be a prolonged and extensive campaign against Republican intransigence on the judiciary—and not just the Supreme Court, by the way, but the lower courts, where Republicans are confirming judges at the slowest rate in over half a century, and where, as Thursday showed the country, the rubber meets the road.

Lately, mass killings have proved inflection points for the debate over guns: Each new massacre has added to the combustible mix of cultural division and political reality. These events are gruesome and wrenching, but they are also some of the only times when the nation’s attention is turned towards the ludicrous gulf that exists between public will and the interests of a powerful few.

No such inflection points have existed for something as cloaked and complicated as the judicial branch—until now. The absence of a ninth judge may ultimately result, as the president intoned, in “children being torn from their parents’ arms.” It will surely result in several million undocumented men and women losing protection from deportation and the opportunity to apply for a work permit. Immigration reform is an issue the Democrats care deeply about, and to a very significant degree, the country is in agreement with them. Here is the most powerful and public example yet of the extraordinary cost of judicial delay.

A patient person might argue that Garland’s nomination has been only temporarily postponed, and is therefore not worthy of protest—who knows what might happen in the lame duck session of Congress, when senators are presented with the reality of Clinton and Trump nominees to the Court. A sane person might argue, as my colleague Conor Friedersdorf has, that it is fundamentally illegitimate for the most powerful political actors in the country to subvert order in the national legislature. But this disastrous season of politics has shown that the arms of combat are rarely put away, even after immediate battle has ended. After Garland, it’s hard to imagine an opposition party ever confirming a president’s judicial picks with anything close to the swiftness that the position (especially now) demands. Delay, resistance, abstention and deferral: These are the new tools of our Congress. The cost of inaction on an issue like gun control is, yes, potentially deadly. But there’s a mighty high price to pay for a broken bench, as well.