I don’t begrudge liberals their anger, being expressed afresh this week, about the Senate Republicans’ refusal to take up President Obama’s nomination of Judge Merrick Garland to the Supreme Court. I’m sure conservatives would have reacted similarly if the shoe were on the other foot, especially since the chief Republican argument for inaction on Garland—let’s wait until after the presidential election—had a distinctly made-for-the-occasion feel. But I don’t think the complaint that the seat was “stolen” from Garland, or from Obama, has much merit.
The complaint has to mean one of two things. In version one of the complaint, the Senate owed Obama a vote on his nominee, even if it ended up being a no vote. But this argument attempts, implausibly, to make the difference between active and passive Senate rejection of a nominee into a major point of principle. (The Founders seem to have deliberately chosen a system that allows for passive rejection of nominees.) It also fails to justify the “stolen” label, since it concedes that the Senate would have been within its rights to reject Garland if it had followed the proper procedure.
Version two of the complaint holds that Obama’s pick deserved deference, and so the proper thing for the Senate to do was to confirm Garland even though the vast majority of Senate Republicans objected to his legal philosophy and the results it would likely have if he were on the Supreme Court. I don’t think that presidents deserve this degree of deference on their Supreme Court nominations.
More to the point, though, neither does practically anyone else in our political system. In 2006, 91 percent of Senate Democrats voted against confirming Samuel Alito. In 2009, 78 percent of Senate Republicans voted against Sonia Sotomayor. In 2010, 88 percent of Senate Republicans voted against Elena Kagan.
In the last four decades, only four Supreme Court vacancies have arisen when the president and a Senate majority came from different parties. In one of those cases, the Senate defeated the White House’s nominee (Robert Bork); in another, the Senate refused to consider the nominee (Garland); and in a third, the nominee (Clarence Thomas) won a narrow vote over the opposition of 80 percent of the majority caucus.
Partisan division over Supreme Court nominations had been rising, and divided government control a major obstacle to confirmation, for quite a while before the Garland nomination. The circumstances under which that nomination failed were certainly unusual, but the failure itself was not particularly surprising. If in 2019 or 2021 we have a Republican president, a Democratic Senate, and a Supreme Court vacancy, Republicans will have occasion to complain that “their” seat is being stolen—and their complaint will have just as much force as the current Democratic one does.