Maybe #nevergarland is a good thing.
Sure, the unprecedented refusal of the Senate to even consider the nomination of Judge Merrick Garland is a violation of the senators’ oaths of office, a dangerous precedent, a constitutional fiasco financed by secretive billionaires, and an indignity foisted upon a good man and solid jurist.
But for progressives, there are at least three silver linings.
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First, the eight-person court is working overtime to avoid 4-4 splits, with unusual consequences such as a proposed compromise on religious exemptions to Obamacare. The Court’s effort to do its job stands in stark contrast to the Senate’s, and may actually be working.
Second, if the presidential race does come down to Clinton vs. Trump, all this stalling may be just that—stalling the inevitable. Maybe Garland will be confirmed in November in order to avoid a Justice Obama or other Hillary Clinton nominee. Maybe Clinton will put up a progressive next February, with the Senate having flipped to a Democrat majority—perhaps driven by opposition to Trump. Either way, maybe this constitutional blip won’t really matter that much in terms of the composition of the court.
Most importantly, though, the #nevergarland/#doyourjob mess may finally accomplish something no presidential candidate has managed to do in the last 50 years: get Americans to care about who’s on the Supreme Court.
The baseline is low. Most Americans cannot name more than a single Supreme Court justice—a 2012 survey found that two-thirds couldn’t name even one. A 2015 Gallup poll found that 44% of Americans had either never heard of Justice Scalia, or had no opinion of him.
And with political opinions already polarized, elections are generally decided based on core issues: it’s the economy, stupid – plus foreign policy/war, a few social issues (this year, immigration and race; other years, homosexuality), and personality.
Not surprisingly, when Americans are polled about the issues most important to them, the Supreme Court tends to be at the bottom of the list.
This, of course, is infuriating to people who are civically engaged, who have, over the years, made eloquent cases for the Supreme Court being the most important issue at stake in presidential elections. In recent years, the Supreme Court has transformed our electoral system (mostly for the worse), made same-sex marriage a national right, saved Obamacare, and issued hundreds of lesser-known but crucial rulings on criminal law, corporate law, environmental law, and labor law. Except for the President, Supreme Court justices are probably the most powerful individuals in American government.
The unimportance of the Court to voters also belies the specious request by Senate Republicans to “let the people decide” the next nominee. Of course, the people already decided in 2012 when they re-elected President Obama to a four-year term. But really, they never decide; except for a few anti-abortion conservatives who would surely vote Republican anyway, the Supreme Court is not on their minds at all.
Could this year be different?
We don’t know yet, of course. Julia Azari at FiveThirtyEight argues that the effect will be limited, because people’s minds will be made up anyway, and the Court issue will follow, rather than lead, those opinions.
I think there’s reason for more optimism, though. Three reasons, in fact.
First, even if the net effect on the election result is limited, it’s at least likely that the Supreme Court will be a higher profile issue, which could boost its importance in the long term, even if it doesn’t swing the 2016 election results.
In the long run, this increase in visibility would be very good for democracy in general. It’s ridiculous that Americans know so little and care so little about the Supreme Court, and changing that situation is more important than how it cuts in any particular election. I wouldn’t say that the net benefit to democracy is worth the disservice to democracy that the Senate is now creating, but it is, at the very least, an unintended side benefit.
Second, responding to conservative concerns that this thrice-married, greed-driven New Yorker is insufficiently religiously pious and/or socially conservative, Donald Trump has promised to put extreme conservatives on the Supreme Court: not just justices who would overturn Roe v. Wade and same-sex marriage, but ideologues like Judge William Pryor, who has said Roe created a right to murder unborn children, and Judge Diane Sykes, who has issued several rulings to the right of Supreme Court precedent on taxpayer support for religious groups that engage in discrimination.
Trump has even offered to outsource much of the evaluation process to the Heritage Foundation, the right-wing think tank funded by the Coors family, the Koch Brothers, the Bradley Foundation, the Scaife Foundation, and the Olin Foundation—the leading funders of America’s far-right infrastructure, the Tea Party, the opposition to Obamacare, the successful effort to erase campaign finance regulations and voting rights laws, and so on.
The Heritage Foundation and its various affiliates have supported the government shutdown in 2013, opposed all attempts at immigration reform, and pushed the virulent opposition to Obamacare, even though Heritage wonks originally invented the individual mandate back in 1989.
In other words, a Trump-packed court would not simply tilt to the right, but fall over itself to the right, taking the country with it. And with an open spot on the Court, this issue would be an immediate, rather than an abstract, one.
Third, to the extent the Senate’s obstructionism is properly understood as Republican obstructionism, it could help defeat the myth that “the system is broken” due to vague, non-partisan “Washington gridlock.” That myth are false, and they have led to the populist revolts of both Trump and Sanders, each of whom blame “the system” rather than Republican obstructionism.
But “the system” didn’t bring us Citizens United; Republican activists, funders, judges, and legislators did. “The system” hasn’t blocked health insurance for millions of Americans; Republican governors have, by refusing to accept Obamacare even at the expense of their own constituents. And “the system” isn’t responsible for the stalemate on Judge Garland. President Obama did his job, and the Republican majority in the Senate chose not to do its, under the thinnest of flim-flam pretexts.
To the extent that this accurate narrative, rather than “the system is broken,” can take hold, it can work to the advantage of those trying to do the job of governance, rather than those in the Senate and on the campaign trail who wish to torpedo it.
It’s quite likely that the Supreme Court issue will generate more heat than light this fall. But given the American public’s cool indifference to this crucial political decision, even heat would be welcome. It may be that obstructionist Republicans are doing democracy, and the Democrats, a favor.
