Most of mainstream journalism, thankfully, has now come to understand that both-sides-ism—the conviction that both parties are equally to blame for today’s dysfunction—is a hoax, and that it’s the Republican Party that is the norm-buster.
Except for one area, that is, where a lot of people do still say both sides are guilty: judicial nominations, especially for the Supreme Court. Here, people point to what the Democrats did to Robert Bork and to Harry Reid’s ending of the judicial filibuster in 2013 as evidence that Democrats’ hands are at least as dirty.
It’s nonsense. And this week, with confirmation hearings beginning for a nominee who is apparently brilliant but in some ways barely qualified (a mere three years on the bench, no experience in courtrooms) in a rushed process of which the American people overwhelmingly disapprove, Republicans are walking us another step closer to the cliff edge. They’re building a Supreme Court that will serve their short-term interests, but in time will lose all its credibility and authority.
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Let’s do a little history, starting with Bork. Yes, the Democrats played unprecedented hardball with his nomination. Everybody says that. But here’s the part very few people say: Bork was a radical extremist who should never have been nominated in the first place.
He had, in 1987, a 25-year track record of excoriating many important Warren-era decisions that expanded justice and rights in this country. In a famous exchange with Orrin Hatch during his confirmation hearings, he couldn’t even commit to supporting Brown v. Board of Education. He was way, way out there.
This was too long ago for most people to remember, but his nomination was instantly controversial. Bork was selected by Ronald Reagan to replace Lewis Powell, a moderate center-rightist. This was a deliberate choice by Reagan and his advisers to move the Supreme Court hard to the right. If there was no precedent for how the Democrats behaved, that’s because there was no precedent for such a pick. Up to that point, presidents of both parties had chosen nominees who were mainstream and wouldn’t set off alarm bells. Reagan very intentionally crushed that precedent.
Democrats were well within their rights to say no to this. They weren’t crazy or extreme. Bork was. And indeed, when Reagan decided he’d better honor precedent and choose a mainstream judge, Anthony Kennedy was confirmed unanimously, backed even by Democrats like Ted Kennedy who obviously disagreed with his views.
As for Harry Reid, yes, he invoked the nuclear option. But he did so because Mitch McConnell had taken blocking Obama-era appointees, both to the bench and to executive branch positions, to absurd and unprecedented heights.
Again, people remember the Democratic action, but they forget the Republican propellant. The GOP Senate blocked Obama’s nomination of Robert Wilkins to fill a vacancy on the DC Circuit Court of Appeals, the country’s most powerful federal appeals court. He was the fourth nominee to that court in a single year that McConnell had blocked. They were all well qualified. McConnell came up with some excuse about the appeals court not having enough of a caseload to justify filling the vacancies, but it was obvious that the real reason was that the DC Court of Appeals leaned conservative at the time, and McConnell simply didn’t want that to change.
Wilkins was African American, by the way, and the other three were women. Said Obama at the time: “Four of my predecessor’s six nominees to the D.C. Circuit were confirmed. Four of my five nominees to this court have been obstructed.” Said Reid: “Appointing judges to fill vacant judicial seats is not court-packing. It’s a president’s right as well as his duty.” They were fed up.
Democrats aren’t angels on these matters. No one is. But this politicization of the federal bench over the last 20 years is 80 percent McConnell. He blocked judges, then laughed and bragged about it.
The Merrick Garland situation was the highest-profile case, but there were many others. Donald Trump inherited 88 district and 17 courts of appeals vacancies, both huge numbers. Did Obama get “complacent,” as Trump once suggested? Of course not. McConnell blocked them.
And now we get to Amy Coney Barrett. First of all, she is only on the federal bench now because the Republicans spent a full year blocking an Obama nominee for the seat. In January 2016, Obama nominated Myra Selby, who had been on the Indiana Supreme Court, to fill a vacancy. Then-Senator Dan Coats refused to agree to her ascension, and the Judiciary Committee, chaired then by Charles Grassley, ran out the clock on Selby’s nomination.
To those who say Democrats would do the same thing if the situation were reversed, I say actually, I bet they would not. Not because some of them wouldn’t want to, but because I very much doubt they’d have 50 votes for such a rancidly corrupt move. Let me explain why.
I’m sure there are a number of Republican senators who are troubled by pushing this nomination through and would like to vote against it, or at least would prefer to wait for the election. But they live in fear: of their base, of a primary challenge that some billionaires will finance if they don’t toe the party line, of Rush Limbaugh and Fox News and the rest of the right-wing media. There is an ecosystem that will punish them, in other words, if they bolt from the party on a matter like this.
There are exactly three Republicans in the Senate who appear to be free of this ecosystem. Lisa Murkowski won her last reelection as a write-in, so she owes the party less and has less fear of it. Susan Collins seems to be making the calculation—although we don’t know for sure yet how she’ll vote—that in Maine, she may be better off bucking the party. And Mitt Romney, a multi-millionaire who basically did his party a favor by running for Senate, has all the freedom he wants, although in this case he’s not exercising it.
On the Democratic side, there is no such ecosystem of punishment. In certain states, a senator who voted against the party on a big vote would face a primary, as Joe Lieberman once did in Connecticut. But that’s only a handful of states.
Besides the above, there simply aren’t as many liberals as there are conservatives in this country, which means that Democrats are more dependent on moderate and swing voters than Republicans are. Add it all up and it means that Democrats from red or purple states—Joe Manchin, Jon Tester, more—are freer to cast the vote that will help them most back home, and decent people whose consciences would bother them for casting a vote as skeezy as the one Republicans are about to cast—like a Chris Coons, say—are freer to vote with their consciences.
So no, the Democrats probably would not do it. And it’s not because they’re better people (although they are certainly better people than Mitch McConnell—there’s only one worse person in Washington than McConnell). It’s because the Democratic ecosystem doesn’t impose nearly as much discipline on individual legislators as the Republican one does.
Mind you, I’m not making excuses for these Republicans. They’re pathetic cowards. They know this is wrong. But in a jungle ruled by Mitch, there are no rules, and there is no morality. Lindsey Graham is even refusing to be tested for COVID-19 in case he tests positive, which would mean he couldn’t chair immediate hearings.
Unless more of them get sick, they’ll probably get their justice. And whatever lies and obfuscations she spits out this week, she’s almost certain to help overturn Roe, and Obergefell, and Obamacare, and condone all manner of discrimination in the name of religious liberty. All of these decisions will be deeply unpopular, meaning that the Supreme Court will be moving more aggressively against the will of the people than at any point in its history.
This will constitute a crisis of democracy. There will be a backlash. Expanding the Supreme Court may not be popular today. But if a right-wing Supreme Court majority, solidified by a young justice whose ascent most Americans consider illegitimate (and who was confirmed, by the way, by senators who represent well less than 50 percent of Americans), undoes social progress that broad majorities support, that will change, and fast. The only good wish I have for Mitch McConnell is that he lives long enough to see his corruption of the Supreme Court reversed and crushed.
