Will the Supreme Court Just Disappear?
At about 4:30 p.m. on Saturday, February 13, the San Antonio Express-News reported that Supreme Court Justice Antonin Scalia had died. Within minutes — before the rest of the country even knew for certain whether the report was correct — the gears of conservative activism had begun to turn. “If Scalia has actually passed away,†tweeted Sean Davis, a former Republican staffer and co-founder of the conservative publication The Federalist, at 5:52, “the Senate must refuse to confirm any justices in 2016 and leave the nomination to the next president.†At 5:53, conservative activist Phil Kerpen tweeted, “Senate must keep vacant past election.†At 5:56, Conn Carroll, the communications director for Republican senator Mike Lee, was already certain this position would prevail, writing, “What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?†By 6:20, less than two hours after the first reports of Scalia’s death, Senate Majority Leader Mitch McConnell had issued an official statement declaring, “This vacancy should not be filled until we have a new president.â€
The world changes fast these days, but it doesn’t change that fast. In reality, the old order — the only one we’ve known, in which custom dictates that presidents have a right to fill Supreme Court vacancies with a justice who has at least somewhat friendly views — had already disappeared. Scalia’s death revealed the tectonic shifts that have taken place beneath our feet. It was the demise not only of a towering justice, or even of his slender majority, but of the institution’s ancient and inviolable standing in political life.
Though the Republican presidential candidates who gathered to debate that evening defended the McConnell position with impressive-sounding specifics, those specifics, characteristically, turned out to be wrong. Obama is not a “lame-duck president,†as Marco Rubio had it. (The country hasn’t yet chosen a successor.) There haven’t been “80 years of precedent of not confirming Supreme Court justices in an election year,†as Ted Cruz claimed. (The Senate confirmed Anthony Kennedy in 1988.) Donald Trump, also characteristically, did not even bother with the pretense of moral justification for denying any Obama pick: “It’s called delay, delay, delay,†he said, once again discomfiting professional Republicans by saying what their voters are actually thinking.
The Constitution’s instructions that the Senate “advise and consent†on nominees to the courts and the executive branch has meant different things at different times. Sometimes, the Senate has given the president wide latitude to appoint justices of a similar bent. As McConnell wrote in a 1970 law-review article, “The President is presumably elected by the people to carry out a program and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a presidential platform.†Other times, the Senate has withheld its consent from nominees deemed too extreme — though no party had yet proposed or adopted blanket opposition to any nominee from the opposing party, until now.
But while the Republican blockade may lack any *precedent, it, too, is probably well within the law. This is the problem. Americans like to imagine our form of government as a perfectly designed system of checks and balances that prevents any one branch from abusing its power. In fact, as the late Spanish political scientist Juan Linz pointed out a quarter-century ago, presidential systems nearly always collapse. Linz attributed America’s unusual ability to make its presidential system operate without violent coups to its weak, ideologically overlapping parties. But that signal observation, which was true when Linz made it, has grown less true over time, as the Democrats have moved somewhat leftward and the Republican Party has lurched far to the right.
It turns out that what has held together American government is less the elaborate rules hammered out by the guys in the wigs in 1789 than a series of social norms that have begun to disintegrate. Senate filibusters were supposed to be rare, until they became routine. They weren’t supposed to be applied to judicial nominations, then they were. The Senate majority would never dream of changing the rules to limit the filibuster; the minority party would never plan to withhold all support from the president even before he took office; it would never threaten to default on the debt to extort concessions from the president. And then all of this happened.
At about 4:30 p.m. on Saturday, February 13, the San Antonio Express-News reported that Supreme Court Justice Antonin Scalia had died. Within minutes — before the rest of the country even knew for certain whether the report was correct — the gears of conservative activism had begun to turn. “If Scalia has actually passed away,†tweeted Sean Davis, a former Republican staffer and co-founder of the conservative publication The Federalist, at 5:52, “the Senate must refuse to confirm any justices in 2016 and leave the nomination to the next president.†At 5:53, conservative activist Phil Kerpen tweeted, “Senate must keep vacant past election.†At 5:56, Conn Carroll, the communications director for Republican senator Mike Lee, was already certain this position would prevail, writing, “What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?†By 6:20, less than two hours after the first reports of Scalia’s death, Senate Majority Leader Mitch McConnell had issued an official statement declaring, “This vacancy should not be filled until we have a new president.â€
The world changes fast these days, but it doesn’t change that fast. In reality, the old order — the only one we’ve known, in which custom dictates that presidents have a right to fill Supreme Court vacancies with a justice who has at least somewhat friendly views — had already disappeared. Scalia’s death revealed the tectonic shifts that have taken place beneath our feet. It was the demise not only of a towering justice, or even of his slender majority, but of the institution’s ancient and inviolable standing in political life.
Though the Republican presidential candidates who gathered to debate that evening defended the McConnell position with impressive-sounding specifics, those specifics, characteristically, turned out to be wrong. Obama is not a “lame-duck president,†as Marco Rubio had it. (The country hasn’t yet chosen a successor.) There haven’t been “80 years of precedent of not confirming Supreme Court justices in an election year,†as Ted Cruz claimed. (The Senate confirmed Anthony Kennedy in 1988.) Donald Trump, also characteristically, did not even bother with the pretense of moral justification for denying any Obama pick: “It’s called delay, delay, delay,†he said, once again discomfiting professional Republicans by saying what their voters are actually thinking.
The Constitution’s instructions that the Senate “advise and consent†on nominees to the courts and the executive branch has meant different things at different times. Sometimes, the Senate has given the president wide latitude to appoint justices of a similar bent. As McConnell wrote in a 1970 law-review article, “The President is presumably elected by the people to carry out a program and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a presidential platform.†Other times, the Senate has withheld its consent from nominees deemed too extreme — though no party had yet proposed or adopted blanket opposition to any nominee from the opposing party, until now.
But while the Republican blockade may lack any *precedent, it, too, is probably well within the law. This is the problem. Americans like to imagine our form of government as a perfectly designed system of checks and balances that prevents any one branch from abusing its power. In fact, as the late Spanish political scientist Juan Linz pointed out a quarter-century ago, presidential systems nearly always collapse. Linz attributed America’s unusual ability to make its presidential system operate without violent coups to its weak, ideologically overlapping parties. But that signal observation, which was true when Linz made it, has grown less true over time, as the Democrats have moved somewhat leftward and the Republican Party has lurched far to the right.
It turns out that what has held together American government is less the elaborate rules hammered out by the guys in the wigs in 1789 than a series of social norms that have begun to disintegrate. Senate filibusters were supposed to be rare, until they became routine. They weren’t supposed to be applied to judicial nominations, then they were. The Senate majority would never dream of changing the rules to limit the filibuster; the minority party would never plan to withhold all support from the president even before he took office; it would never threaten to default on the debt to extort concessions from the president. And then all of this happened.
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