Ask a simple question, and you may get no answer at all.
I began trying a week ago to get an answer from Sen. Steve Daines, R-Mont., to an obvious question. I’m still trying.
In a way, though, I have been making progress. I have never before gotten a response of any kind from Daines, whether I was asking for the Billings Outpost, for Last Best News, or even as a private citizen. This time, I got a one-sentence reply: “The American people spoke in the last election and wanted Judge Neil Gorsuch as their next U.S. Supreme Court Associate Justice.”
Even without knowing what the question was, you should be able to see what’s wrong with this answer. First, if the American people spoke in the last election, as opposed to the loud bark of the Electoral College, then clearly they did not say they wanted Neil Gorsuch. More Americans voted for Hillary Clinton than for Donald Trump, and more voted for Democratic senators than for Republicans.
Second, it’s safe to say that most Americans had never even heard of Gorsuch when they voted in the last election. No doubt at least some of them wanted someone like Gorsuch, but it’s not clear even then that Americans would have preferred Gorsuch over Merrick Garland, who was President Obama’s nominee more than a year ago. Every poll I saw said that Garland should at least have gotten a hearing, and Daines took a beating from Montana editorial boards and in letters to the editor for denying Garland even that simple courtesy.
Finally, Obama was more popular than either of his potential successors has ever been. He was also more popular than the Senate, and his nomination of Garland appeared to be expressly designed to win bipartisan support. To argue that respecting his nomination somehow disrespects the American people is to disrespect logic.
Daines’ one-sentence reply is even worse when you consider what the question was: “If a vacancy should occur in the last year of Trump’s presidency, does the senator favor denying a hearing to any candidate Trump may nominate in the final year of his first term? In other words, should a Trump nominee in an election year be treated the same way Obama’s nominee was treated?”
I can think of only two honorable responses to that question:
- Of course not. This isn’t about principle. It’s about politics.
- Absolutely. No Supreme Court justice should be confirmed in a presidential election year.
The first answer, to its credit, is probably true. The second answer is coherent, but troubling. For one thing, it overturns more than 200 years of American history. While certain Republicans have pretended that denying confirmation during election years is a Senate tradition, no such tradition exists.
Moreover, if we agree that no candidates should be confirmed in an election year, then we agree to a system that works this way: A president’s power to fill Supreme Court vacancies begins in the final year of his predecessor’s term and ends in the final year of his own term. I think we know why the founders put no such provision in the Constitution: They were not idiots.
Legal scholars warned that denying a hearing to Garland could gum up the whole judicial confirmation works, and that appears to be what is happening. Some prominent Republicans promised before the election that they would oppose any Clinton nominee regardless of qualifications. Some Democrats no doubt opposed Gorsuch solely because they were still angry about Garland.
To get Gorsuch confirmed, senators revoked the filibuster rule that had applied to Supreme Court nominations, removing the last barrier to a purely partisan confirmation process. Democrats already had revoked the rule for lower court nominees in response to filibusters of 79 Obama judge nominees in the first five years of his presidency. That’s more judicial filibusters than had occurred under the last 11 presidents combined.
My only goal is to make America great again. One way around this impasse, I figured, would be if senators agreed to deny hearings to any Supreme Court justice nominated in the last year of Trump’s first term.
Chuck Todd put that proposition on “Meet the Press” to Senate Majority Leader Mitch McConnell. He called it “an absurd question.”
“Everybody knew that either side—had the shoe been on the other foot—wouldn’t have filled it,” he said.
So anticipated bad behavior on one side justifies bad behavior on the other? Those don’t sound like Montana values.
I fired off an email to Daines to see if he would agree to oppose any election-year nominations. I got a response asking for clarification. I clarified.
I got the response quoted at the top of this column. I explained that the response wasn’t strictly accurate and that it did not in any case answer my question. No response.
I fired off another email repeating the question. No response.
I called Daines’ office in Washington. Nobody there would talk to me, but I was given another email address and fired off another email. No response.
No doubt the good senator is contemplating how best to do the right thing. I will let you know.