Supremely Wrong

Law professor Geoffrey Stone on how the Republicans’ refusal to even consider Merrick Garland undermines the legitimacy of the Court.  He’s right:

Throughout my career, I have honored the fundamental role the Supreme Court plays in our system of government. There have, of course, been many Supreme Court decisions with which I’ve disagreed over the years, but I have always respected the essential legitimacy and integrity of the Supreme Court as an indispensable institution in our American democracy.

But now, for the first time in my career, I find myself hesitating. This is not a reflection on the judgment or integrity of any of the current or former justices. It is, rather, a reflection on what the Senate Republicans have done to the fundamental legitimacy of the Supreme Court in the future. By refusing to confirm President Barack Obama’s appointment of Chief Judge Merrick Garland to the Supreme Court, Senators Mitch McConnell, Charles Grassley, and their Republican cronies betrayed our constitutional traditions and undermined a central principle of American democracy. Although they maintained that their unconscionable behavior was “justified” by the fact that the vacancy arose during President Obama’s final year in office, this was a blatantly dishonest assertion. In fact, a long line of presidents have made appointments to the Supreme Court in the final year of their terms, including such historic figures as George Washington, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, William Howard Taft, Woodrow Wilson, Herbert Hoover, Franklin Roosevelt, and Ronald Reagan.

The plain and simple fact is that the Senate Republicans profoundly abused their power and violated the spirit of our Constitution and of our constitutional traditions for one reason and one reason only – to prevent a duly elected president from appointing to the Supreme Court an eminently qualified and properly confirmable justice in the rank partisan hope that the next president – hopefully a fellow Republican – would then appoint a justice more to their ideological liking. [emphases mine]

And, sadly, when all the dust settled, they actually got away with it. No better than burglars, they got away with it. Instead of acting in accord with long-settled constitutional principles and traditions, they violated the norms of the Supreme Court appointments process and deliberately abused their authority for rank partisan advantage.

Their unconscionable behavior will rightly cast severe doubt on the legitimacy of whatever individual President Trump appoints in place of Chief Judge Garland. Every vote that justice casts in the future will be called into question, because that justice will be sitting on the Supreme Court bench because of nothing less than a constitutional coup d’etat. Through no fault of his or her own, that justice will be seen as an interloper who should never have been appointed to the Court…

As a sign of the moral corruption that now plagues our nation, though, in this instance Senate Republicans, caring more about outcomes than principles, ruthlessly distorted the advice and consent process in order to attain partisan political ends. That this happened is nothing short of disgraceful. Let us not forget their shameful abuse of authority. And let us not forget that President Trump’s first appointment to the Supreme Court will in fact be an illegitimate interloper who has absolutely no business being the decisive vote in critical Supreme Court decisions in the years and decades to come. By this act, Senate Republicans have undermined the credibility and the legitimacy of an essential branch of our national government. Shame on them.

Yep.  Of course, the decisions will still be followed.  But many 5-4 decisions will surely have an extra cloud over them.  David Dayen on how Obama should stick it to the Republicans by giving Garland a recess appointment.  Alas, it’s out of Obama’s character to take such action:

Come January, President Barack Obama will be consigned to the sidelines as Donald Trump occupies the Oval Office and begins the work of dismantling his legacy. But there is one action that Obama could take on January 3, 2017 that could hold off some of the worst potential abuses of a Trump administration for up to a year. Obama can appoint his nominee Merrick Garland to the Supreme Court on that date, in between the two sessions of Congress.

Based on everything we know about Obama’s temperament and politics, he won’t resort to this. But given how Republicans relentlessly obstructed his efforts for eight years, he would be completely justified in playing one final trump card. And there’s a cost to ignoring that card. The fact that Democrats prefer to maintain governance norms, even while Republicans break them time and again, inescapably pushes the policymaking apparatus of the country to the right…

All that said, this would be completely out of character for Obama, who plans to spend his final two months in office as a horse whisperer to Trump, not an antagonist. The gambit would have an extremely low likelihood of permanent success—even if the Court didn’t rule the Garland appointment unconstitutional (and it probably would), he’d be out in a year.

More than that, it just wouldn’t be sporting. It would break a long-held governing norm, that you don’t use the powers of the office for short-term political gain. Obama would see reversing this as highly treacherous.

And that’s the real point. Republicans have absolutely no problem breaking any norm in their path to power. They turned the filibuster from a seldom-used tool to a routine exercise. Tom DeLay saw advantage in doing a second redistricting in Texas in 2003 to pick up extra GOP seats, even though states normally redistrict every 10 years; he succeeded. Congress typically passes the debt limit without comment, but Republicans took the country to the brink of its first default, extracting concessions in the process. A minority of the Senate prevented the confirmation for years of any director of the Consumer Financial Protection Bureau simply because they didn’t like the agency. The opposition party would never attempt to conduct foreign policy that differed from the president’s, until Republican senators tried it before the Iran deal…

There are consequences to one party being more aggressive about defying governing norms. If liberal legislation can’t break a Republican filibuster, but Democrats don’t offer the same resistance, the playing field is tilted to conservative policy. If Republicans use any maneuver to get appointees in place, and Democrats don’t, conservatives become more likely to be ensconced at executive agencies. If Republicans are willing to blackmail the government and Democrats aren’t, they get more concessions from that blackmail. If Republicans use gerrymandering and voter suppression and every available tool more sharply than Democrats, we get conservative government even if we vote for a liberal one.

Democrats, in short, bring a butter knife to a gunfight. They may be correct on the merits that institutional norms allow the government to function properly. But as long as Republicans don’t care about such niceties, that respect is equivalent to surrender.

Damn it, but if nobody respects important norms, what then?!  Democrats may be bringing a butter knife to a gun fight, but Republicans are just shooting machine guns in a crowded square, damage to democracy be damned.  Ugh.

About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

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