The president’s nominee will almost surely pose a threat to the Constitution. And Republicans should say so.
The president’s nominee will almost surely pose a threat to the Constitution. And Republicans should say so.
I t’s highly unlikely that Republicans will be able to mount any serious challenge to President Joe Biden’s impending nominee to the Supreme Court. Whoever the president nominates, however, will almost surely pose a threat to the Constitution. And Republicans have a duty to say so.
As always, there are calls to lower the political temperature and give deference to the president’s choices. Sarah Isgur of the Dispatch, for instance, argues that qualified nominees should be given consent “without regard to their politics, philosophy, or even whether they were ‘the *most* qualified’” as a way to depoliticize the process. Critics contend that Washington should avoid allowing the Supreme Court confirmation process to devolve into just another partisan fight, such as the ones we have over cabinet officials.
The sentiment is correct for the wrong reasons: This shouldn’t be like the other processes. There should be far higher standards and far less deference afforded a president’s nominee for the Court than any cabinet official. Not merely because cabinet officials exert only fleeting influence but because they exist to assist the president in duties related to the executive branch, the job for which he was elected. The Supreme Court is an equal branch of government. Its decisions outlive presidencies and contemporary debates. Advise and consent is not a rubber stamp.
And though the Court often tempers the excesses and vagaries of majoritarianism, the Senate is a political body. And the nomination process is a political event. Within this process, the nominee’s philosophy should be far and away the most important factor in any decision. Senators, after all, swear to “support and defend the Constitution of the United States,” not to pass generational welfare-state expansions or forgive student loans. This is the job. (Though it is also unlikely that the Founders could ever have imagined a president’s nominating a justice who favored foreign constitutions or maintained that the Second Amendment wasn’t an individual right.)
Indeed, the “politicization” of courts is not a one-way street. If the president of the United States openly embraces a “litmus test” on Roe v. Wade, then pro-life senators — or anyone who believes that the 1973 decision concocting a right to an abortion was wrongly decided — should have no compunction opposing a nominee on that basis. If the president promises his pick will be predicated on the race and sex of a nominee, as Biden has done, GOP senators — who oppose race-based quotas — have every right to contest a nominee on those grounds. And if a president vows to select a nominee who doesn’t dispense blind justice but expresses “empathy” for “people’s hopes and struggles,” anyone who cares about our constitution has a duty to stop them.
What probably put Donald Trump over the top in 2016 was his promise, memorialized in a formal list, to nominate jurists who would not ignore the concerns of social conservatives. An originalist Court is one of the foundational political objectives of the modern conservative movement.
Republicans, then, have no responsibility to placate Democrats who have taken to acting like every political setback portends the literal end of democracy.
No one is innocent when it comes to power politics, but the escalations in the fight over the Supreme Court are nowhere near comparable. It was Joe Biden, and other Democrats, who blew up the long-standing bipartisan comity of the nomination process when they smeared Robert Bork and then Clarence Thomas. It was Harry Reid who blew up judicial filibuster so that Barack Obama could have his way, despite warnings that it would come back to hurt Democrats. When Mitch McConnell refused to give Merrick Garland a vote, he was relying on a preposterous “rule” that Biden had invented while in the Senate when it was convenient. What McConnell should have argued was that it was within his authority, as prescribed by the Constitution, to deny a vote to yet another justice who would undermine the law. If voters were opposed to this position, they could vote for Democrats. There are political consequences to the nomination process, because senators, unlike justices, answer to voters.
There is a yawning gulf between opposing a nominee over judicial disposition, ideology, or past political affiliations and smearing judges as rapists, racists, and papists. This was what Democrats did to Brett Kavanaugh, Amy Coney Barrett, Bork, Thomas, and others. There is no reason whatsoever for Republicans to unilaterally stand down and allow this to continue. Either conservative senators believe in their originalist rhetoric, or they don’t. If they do, they have political duty to vote for those who will uphold the Constitution as written and oppose those who will not.