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How to Make Sense of All the Post-Scalia B.S.

A plea for cross-ideological understanding.

Saul Loeb/Getty Images

The Republican Party’s instant and still-hardening opposition to considering anyone President Barack Obama might nominate to replace deceased Supreme Court Justice Antonin Scalia has generated tremendous demand for post hoc conservative arguments that rationalize blanket obstruction as a matter of precedent and principle. It has, at the same time, invited liberals to feign bewilderment that a rival political movement would ever behave so cynically. 

Supreme Court confirmation fights are notoriously dominated (more even than most political combat) by disingenuous bullshit and false piety. This one promises to break all records. So here’s my (undoubtedly futile) plea that everyone abandon high-minded pretenses and admit that the principle animating this fight is will to power.

This should be a particularly easy proposition for liberals, who are blessed with opponents who won’t even bother pretending they’ll take their half of the confirmation process seriously. The indiscriminate filibuster, explicitly untethered from a nominee’s merit, or an issue’s urgency, is a precedent borne in recent years of unique disdain for, and strategic resistance to, Obama’s presidency. No other president has faced it, so liberals have no hypocrisy to answer for. Conservatives often cite the Senate’s 1987 rejection of Judge Robert Bork to justify modern obstruction, but they are actually proving the precedence point. Democrats (and six Republicans) blocked Bork, after fully considering his nomination, based on specific objections to his judicial temperament, not to deny President Ronald Reagan the ability to fill Supreme Court vacancies. He wasn’t even filibustered.

What liberals could do is acknowledge that there’s more cross-ideological understanding here than meets the eye.

Nobody denies that Scalia’s death in the final year of a Democratic presidency is an enormous development. Stakes and roles reversed; most liberals would probably want Senate Majority Leader Chuck Schumer to prevent outgoing President Ted Cruz from flipping the Court’s ideological balance. In that sense, Republicans aren’t doing anything that Democrats can’t fathom. Republicans just got here first.

When Senator Elizabeth Warren writes that by “[a]bandoning the duties they swore to uphold,” Republicans “threaten both the Constitution and our democracy itself,” she’s probably exaggerating—our democracy can likely survive an eleven-month Supreme Court vacancy—and locking herself into a position she might feel differently about in four or eight years.

But if we’re going to treat Democratic fainting couches as stage props, we should be at least as skeptical of the view that a blanket filibuster will serve some noble purpose—that it is consistent with precedent, or will dampen partisan polarization, or preserve what’s left of the public’s faith in our institutions.

New York Times columnist Ross Douthat wrote an archetypal version of this argument on Saturday. “If there is to be a liberal replacement for a figure as towering as Scalia, if the court is about to swing sharply to the left, it’s far better for the judicial branch’s legitimacy if that swing follows a democratic election, a campaign in which the high court stakes are front and center in the race.”

You can imagine a scenario in which this argument reads more persuasively—if Scalia were a young justice, cut down with cosmic unfairness years before the president who nominated him imagined his seat would be vacant once again. But Scalia was 76 years old in November 2012, when voters returned Obama to office. His supporters were motivated in part by a desire to prevent the Court from drifting further rightward (it had just come within a hair’s breadth of voiding the Affordable Care Act, remember) and the hope, however distant, that Obama would turn it to the left.

Refusing to replace Scalia with all deliberate speed isn’t “better for the judicial branch’s legitimacy” unless that legitimacy is conferred exclusively by the smaller half of the country that voted for Mitt Romney.

Additionally let’s not grant the presumption of sincerity to anyone making process-based arguments if they also, say, celebrated Bush v. Gore (in which Scalia joined the Court’s conservatives in trampling a heap of judicial norms) or if they now support candidates who would touch off multiple crises on inauguration day by voiding international agreements out of pure partisan spite (another horror show of institutional decadence).

Nobody who excused or cheered the GOP’s unprecedented decision to demand policy ransoms for increasing the debt limit is first and foremost motivated by preserving political norms. When he was still senate minority leader, Mitch McConnell laid the predicate for the Supreme Court obstruction he is now leading. McConnell organized indiscriminate filibusters of Obama nominees, irrespective of merit, to the National Labor Relations Board, the Consumer Financial Protection Bureau, and the D.C. Circuit Court of Appeals, explicitly to secure policy outcomes foreclosed upon Republicans by recent elections. He sought to effectively nullify entire regulatory agencies and contrived to keep conservatives in control of the second most powerful court in the country, by shattering the norms that once governed the Senate’s advice and consent power.

Conservatives who didn’t care about that affront, but convulsed when Harry Reid solved the problem by eliminating the filibuster for all sub-Supreme Court nominations, shouldn’t be mistaken as tribunes of principle for our faltering governing institutions. 

They’re also probably lying to you about the Supreme Court fight today.

Many of the senators who will soon participate in a strategic, months-long filibuster of Obama’s nominee, and who will claim to be grounding their decision in precedent, were thrilled to confirm Justice Anthony Kennedy in the last year of Reagan’s second term. More than happy, they were adamant about it.

On Saturday, Senate Judiciary Committee chairman Chuck Grassley claimed “it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year.” Though Grassley is not a lawyer, his use of the word “and” is a lawyer’s trick meant to excuse his advocacy for Kennedy, who was nominated after the Bork fiasco in November of 1987 but confirmed in March 1988. “At the beginning of these proceedings,” Grassley said upon Kennedy’s unanimous committee vote, “I set out a three part standard for evaluating Judge Kennedy’s nomination. And that test is the same one that I have applied to previous nominees to the high court. This afternoon I am pleased to announce that Judge Kennedy has met all three parts of this test and has earned my vote for confirmation.”

The case for absolute obstruction is simple: It sustains the hope of replacing Scalia with another conservative, restoring the Court’s prior balance, at the expense of the majority of voters in the country who vested Obama with the power to alter it. Out of respect for their intelligence, let’s not pretend that the country or the judiciary or our political system is better served by letting the next election sort this out.

Correction: This article originally stated that Judge Robert Bork’s nomination to the Supreme Court was filibustered. Bork was rejected on a bipartisan basis without filibuster.