Greg Gianforte, the failed gubernatorial candidate now seeking the U.S. House seat that Ryan Zinke presumably will soon vacate to become secretary of the Interior, is all on board with President Trump’s agenda.
“He’s draining the swamp, nominating outsiders that will dramatically change how Washington operates, and working everyday to Make America Great Again,” Gianforte said in an email on Wednesday. He asks email recipients to answer a one-click poll question: “Should the Senate confirm Judge Neil Gorsuch?”
Gianforte reaches this conclusion: “Last November should have been a clear message to the Left that the American people are sick and tired of business as usual in Washington. But the actions of Senate Democrats over the last few weeks – obstructing Donald Trump’s cabinet picks and pledging to filibuster Judge Neil Gorsuch’s Supreme Court nomination – clearly show they haven’t learned any lessons from the results of the 2016 election.”
Unfortunately, it is beginning to appear that Democrats learned their lesson all too well. Gianforte has discovered the political virtues of a short memory, but Democrats haven’t forgotten that Gorsuch has been nominated only because Republicans refused for a full year to even consider President Obama’s nomination of Merrick Garland to the court.
An article in the New York University Law Review pointed out just how unprecedented that delay was. The authors examined every Supreme Court nomination in U.S. history and found that the Senate has refused to confirm a nominee in order to allow his successor to make the appointment in only two circumstances.
♦ When the nomination was made by an unelected president.
♦ When the nomination was made after a new president already had been elected but had not yet taken office.
The article notes that before passage of the 25th Amendment, senators sometimes argued that vice presidents who took over for a dead president were only acting presidents and lacked authority to appoint Supreme Court justices. It further notes that in some cases the Senate has confirmed nominees even after a president’s successor has been elected.
Republicans like to point out that no Senate in 80 years has confirmed a candidate appointed in an election year—Sen. Ted Cruz made that argument just this week on national television. But the Law Review notes that the situation hasn’t come up in the last 80 years. The last time it did come up—84 years ago—the Senate confirmed an election-year appointment.
The Republican Senate’s refusal to consider Garland’s appointment was therefore without precedent in U.S. history. And it made for a perfect test case of the Senate’s loyalty to precedent: Garland was an experienced, highly qualified and widely praised judge, and he was nominated by a president who had been popularly elected twice.
The article was written before last year’s election, so the authors could only speculate about the possible consequences of the Senate’s delay. One possibility, it argued, is that the Senate’s action broke tradition and custom so radically that it might even be challenged on constitutional grounds as a violation of separation of powers.
A scenario the article examined is precisely the situation we are in: With a Republican president and a Republican-controlled Senate, “Democrats may deploy unprecedented procedural tactics to block or prolong consideration of any such nominee. The end result could well be a continued spiraling of Supreme Court appointment processes into increasingly protracted and acrimonious strategies deployed by both parties in ways that have nothing to do with the merits of any particular candidate.”
If no nominees are to be confirmed in an election year, then why not block all nominees for two years, which is when U.S. presidential elections typically get underway? Or why consider nominees by an opposing president at all, an action some Republicans threatened to take if Hillary Clinton were elected?
Ultimately, the article points out, both parties may decide they have been cheated out of nominations and resort to even more obstructive tactics, such as impeaching Supreme Court justices appointed by presidents from the opposing party. The result could be a transformation of the court into a purely political body.
Both leftists and right-wingers must carefully examine the Gorsuch nomination, if they care about such traditional conservative values as respect for tradition, precedent and the rule of law. By rejecting Garland, Republicans broke a practice that had served America well for more than two centuries, and the Democrats’ reaction to the Gorsuch nomination may well determine whether the system remains broken. What should Democrats do?
♦ Should they filibuster Gorsuch and risk incurring the “nuclear option,” in which Republicans change the rules so Supreme Court nominees can be approved with only a 51-vote majority? The filibuster has been badly abused in recent years, but this is one situation where it makes sense: Supreme Court justices may serve for decades, through many shifts in political alignment, so at least some bipartisan buy-in is desirable.
♦ Should they refuse to consider any candidate until hearings have been held for Garland? This would require Trump to re-nominate Garland, which he no doubt would refuse to do, but it would make for an entertaining tantrum.
♦ Should they demand that Republican senators commit to opposing any candidate nominated by Trump in the last year of his term? MSNBC host Chris Matthews tried this tactic Wednesday night on a Republican strategist, asking him to promise to appear on television again in four years to oppose any election-year nominee. The strategist dodged the question repeatedly.
♦ Should they introduce a constitutional amendment limiting the president’s power to appoint Supreme Court justices to the first three years of each term? This would at least put the matter on firm constitutional ground, and it would force Republicans to publicly debate whether their delaying tactics were good for America.
♦ Should they simply acquiesce and confirm Gorsuch, who, like Garland, appears to be a capable and qualified judge? But that would justify a new and dangerous precedent and establish a regime in which Democratic presidents get three years to nominate Supreme Court candidates and Republicans get four.
These are serious concerns, and they should be raised with any candidate for Congress, even of House candidates who don’t get to vote for Supreme Court justices. It would be one way to find out whether any conservatives are in the race.