From the conservative point of view, at least when speaking out loud, Democratic presidents nominate activist judges. Merrick Garland is, apparently, the latest example and will go down in history as the nominee who almost tripled any previous delay in a Senate vote on a successor.
To hear conservatives tell the story, the gold-standard of Supreme Court Justices are those that are above politics. Justices like the late Antonin Scalia and Clarence Thomas are not political per se, they are originalists. Their jurisprudence stems from the constitution itself. It’s not a political issue, it’s just law. It’s those words on that parchment.
That’s the line and it works. The rhetoric has worked as the court has become more conservative since Reagan, and the court has in turn helped conservative and Republican causes in the political sphere when called upon.
Of course the most consequential Supreme Court intervention was the 5-4 decision that sealed Bush’s election victory in 2000. Once President George Bush nominated Justices Roberts and Alito, critical decisions that favor GOP political aspirations such as Citizens United and the evisceration of the Voting Rights Act inevitably followed, lead by those Justices whose jurisprudence theoretically stems from originalism, not partisanship.
And GOP Congressional leaders of course understand their role in this political game. In 2016 when Justice Scalia died with just over a year remaining in President Obama’s term, and President Obama nominated him with 342 days left in his term, the Senate had never taken more than 125 days to vote on a successor.
Yet as soon Justice Scalia died, Senate Majority Leader McConnell promised that he would make this election a referendum on the Supreme Court seat knowing that his party had nothing to lose and everything to gain. Governing be damned. Even the Supreme Court can be used as the ultimate political prop.*
And now with that despicable strategy successful with a GOP president-elect from Tuesday’s election, the cycle of the GOP Supreme Court protecting the GOP’s national ambitions, then GOP leaders doing every inside and outside decent and civil governing procedures to maintain rhetorically apolitical Justices, seems to be certain for yet another generation.
And Democrats had no choice other than to hope for sanity in our nation’s decision for President last Tuesday. That was the right thing to do given the GOP’s intransigence on governing. We put our trust in the people, and the people chose 4 more years of GOP leadership to continue this vicious cycle of ungoverning. A cycle in which the Supreme Court specifically, and our federal judiciary more broadly, will be staffed by those that support the GOP’s agenda to maintain the rights of wealth and corporate infrastructure over people and broader public interests.
*BTW, I bought up the planned use of the Supreme Court as GOP GOTV (get out the vote) on March 29th here, but I was so dreadfully wrong when I wrote this. “The goal for the (GOP) true believers in leadership is maintaining the Presidency and thus the Supreme Court. But at this point Mitch McConnell must realize that the Presidency will go to a Democrat in 2016. So why the continued intransigence?” Ugh. I had no idea.
Day -70 of our Ungovernment.