How the Senate Stopped Pretending

Senators grapple with the reality that they have destroyed their own house.

The kind of people who run for the United States Senate overlaps strongly with the kind of people who like to make grandstanding speeches about the sweep of history and the decline of democracy. Senators were in full form today during the close of Amy Coney Barrett’s Supreme Court nomination hearings. “There are very few written rules around here. The most important rules are the unwritten ones. Most important of those rules is: You keep your word,” declared Senator Richard Blumenthal of Connecticut. When Justice Antonin Scalia died in February of 2016 and Republicans refused to consider Merrick Garland’s nomination, the party promised “that never would a Supreme Court nominee be considered during an election year,” Blumenthal said. “You are breaking that word.” Senator Amy Klobuchar of Minnesota summed up the Democrats’ position: “This is a sham.”

Republicans responded to these accusations with a narrative of their own: that there is plenty of historical precedent to justify voting on Barrett’s nomination roughly one week before the 2020 election; that Democrats played their part in the all-out war over Supreme Court nominations; that election results matter, and for now, Republicans hold the White House and the Senate. “We’ve got the authority to do this. We’ve got historical precedent on our side. And we’ve also got the Constitution and the best nominee that I’ve seen in a long time,” Senator Mike Lee of Utah said.

It was an extraordinary moment, not because of the senators’ indignation, but because of their lament. Nearly all of the legislators on the Senate Judiciary Committee seemed to recognize that something has been lost as Supreme Court confirmations have turned into full-blown partisan battles. “The rule of ‘Because we can,’ which is the rule that is being applied today, is one that leads away from a lot of the traditions and comities and values that the Senate has long embodied,” said Senator Sheldon Whitehouse of Rhode Island, a Democrat. Many of the norms that keep American democracy functioning are under threat. Senators like to pretend theirs is still a body of statesmen. But looking around at one another today, America’s most elite legislators seemed to realize that the conventions of American democracy are eroding, and they are responsible for urging it along.

How, and when, did things get this bad? Answers tend to start in different places, depending on who’s narrating. Many conservatives would point to Robert Bork, a conservative legal scholar who played a starring role in President Richard Nixon’s Watergate scandal and whom President Ronald Reagan nominated to the Supreme Court in 1987. The Senate rejected Bork by a vote of 58 to 42 after Democrats alleged, over Bork’s vociferous denial, that the judge wanted to take the country back to the days of segregation and back-alley abortions. Thirty years might seem like a long time to nurse a grudge, but some of the starring characters in that affair, including then-Senator Joe Biden, remain at the center of American politics today. “His name has become a verb: the ‘Borking’ of nominees,” said the Republican Senator Josh Hawley, who was 7 years old when Bork was nominated, this week. “I think what we’ve seen here today is an attempted Borking of Judge Amy Barrett.”

Senator Lindsey Graham of South Carolina recalled talking with Chuck Schumer one night in 2013, begging the New York Democrat not to eliminate the 60-vote threshold for closing debate on judicial candidates—a bar that ostensibly forced the Senate to reach bipartisan consensus, but also enabled Republicans to obstruct President Barack Obama’s nominees. “That set in motion a lot of things that have taken the Senate in the wrong direction,” Graham said today. And many Republican senators still clearly believe that Christine Blasey Ford’s sexual-assault allegations against Judge Brett Kavanaugh when he was a nominee for the Supreme Court in 2018 were the ultimate dirty trick. “It was a freak show!” said Senator John Kennedy of Louisiana during his opening statement on Monday. “It looked like the cantina bar scene out of Star Wars.” Graham pointed out that he voted in good faith for Obama’s two successful Supreme Court nominees, Elena Kagan and Sonia Sotomayor, even though he knew they would vote in ways he disagreed with, because he believed they were qualified. But “it’s kind of silly to play a game nobody else is playing,” he said. After what happened to Kavanaugh, he added, “I’m not going to sit on the sidelines and watch one of our nominees be destroyed after showing respect for two Democratic nominees. That is not right, and I’m not going to do that.”

Democrats have their own story to tell. Many in the party still “have Merrick Garland stuck in our craw,” said Senator Dick Durbin of Illinois today, echoing his colleagues’ outrage over the double standard Republicans seemed to apply to Supreme Court vacancies four years ago and today. Democrats noted that millions of Americans are already voting to elect the next president, and potentially a raft of new senators. But they were also deeply troubled by the many questions Barrett refused to answer during this week’s hearings. There has been “a denigration of the process to the point where it’s almost useless,” Durbin said. “We’ve reached the point now where gifted, experienced jurists [and] legal scholars take that seat behind the table and then deny everything.” Durbin and others expressed shock that Barrett would not speak directly to her views on fundamental issues of democracy, which Republicans have also complained about in the past: whether the president can unilaterally delay the election, for example, or whether he can obstruct the peaceful transition of power. These are not abstract worries: Trump has flirted with both prospects ahead of the 2020 election.

Both stories lead to the same conclusion: It’s no longer plausible to claim that the Senate simply advises and consents to the qualification of Supreme Court nominees, in accordance with its constitutional duties. As the justices continue to decide some of America’s most contentious issues, senators have come to believe that these appointments might make or break their policy agendas. The Senate confirmed Justice Scalia, the godfather of the conservative legal movement who served as Barrett’s mentor, 98 to 0. Senators voted for Justice Ruth Bader Ginsburg, the liberal icon who Barrett will replace, by a margin of 96 to 3. Barrett almost certainly has the votes she will need to earn a lifetime appointment to the Supreme Court bench, but her confirmation will likely look closer to that of Trump’s other nominees, Kavanaugh and Neil Gorsuch, who were both confirmed narrowly along mostly partisan lines.

As Senator Dianne Feinstein rose to button her royal-purple blazer at the conclusion of the hearings, Graham approached her, reaching for a handshake. Instead, she pulled him in for a maskless hug. The 87-year-old California senator seemed not to care that Graham refused to get tested for COVID-19 last weekend before the hearings began, or that several of the senators on the committee showed up despite recently being exposed to people with the coronavirus—all ploys to avoid delaying the nomination. For a few seconds, as the senators embraced, it could have been the old days again, when bipartisan friendship and decorum reigned. But the moment passed. As Senator Cory Booker of New Jersey put it, “I recognize, Mr. Chairman, that this goose is pretty much cooked.”