In case you doubted that Senate Republicans' campaign of obstruction against Supreme Court nominee Merrick Garland has stunk of bad faith from the outset, recent statements from several high-ranking Senate Republicans should put your doubts to rest. The emerging plan seems to be not only to deny President Obama the opportunity to fill the ninth seat on the Court, but to obstruct anyone put forth by Hillary Clinton as well. We have been treated to fatuous rhetoric about how respect for democracy requires that the vacancy be filled by the new president, but now it seems that this principle, dubious as a matter of history or constitutional law, will evaporate in light of the likelihood of another Democratic president.
Here's Ted Cruz on the subject:
"I think there will be plenty of time for debate [on whether to consider Clinton's nominees].... There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”
(It turns out that Breyer wasn't quite as sanguine about the prospect of an eight-member Court as Cruz made him sound. Justices Sotomayor and Ginsburg are decidedly more hostile, and even Justice Thomas has indicated dissatisfaction with the status quo.)
Here's John McCain promising to be "united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up." He later tried to walk back that statement, claiming that he promised only to scrutinize her nominees closely rather than bar their consideration altogether, but you can decide whether that more charitable reinterpretation has more credibility than the initial statement.
And as if on cue, a number of legal commentators have rushed in to lend a patina of intellectual respectability to this shabby effort. There's Cato's Ilya Shapiro arguing at The Federalist that the Senate would be within its rights never to confirm another Supreme Court nominee, no matter the consequences to the judiciary. There's Eric Segall making the case that an eight-member Court would be preferable to a nine-member Court, in that the former would have to achieve higher levels of consensus on controversial cases. And there's Michael Stokes Paulsen writing at National Review about how shrinking the Court to six, either by legislation or Senate commitment to atrophy, would produce a Court less prone to judicial activism, or at least the bad kind that produces decisions liberals like, because two-thirds is greater than five-ninths.
Does anyone really believe that these arguments would have surfaced had a Republican presidential nominee been primed to assume the presidency? In that scenario, we'd be hearing about how elections have consequences, and how FDR demonstrated the evils of tinkering with the size of the Supreme Court for short-term partisan or ideological advantage. (It's telling that the defenders of obstruction have to go back to the Reconstruction era to find examples of obvious manipulation.) Ultimately, though, it's the senators, not the law professors, who whose views will prove more consequential for the Court's fate. And we'll have more clarity about their fate after next week's election.
So President Obama's winter break plans should be straightforward: Have a nominee lined up for every single federal judicial vacancy. If voters elect Clinton and a Democratic Senate majority--if we get the latter, we'll almost certainly have gotten the former too--then he should spend the last two weeks of his presidency pushing nominees through. It's not as though he'll have much else to do, in all likelihood, and Clinton would get to conserve political capital for other battles she'll be fighting. (If voters go in a different direction, then all bets are off, of course.)
Some possible objections:
- What about Hillary Clinton? Won't she feel miffed about being denied the opportunity to fill these seats, should she win election? This problem could be solved easily by Obama's inviting Clinton to make the judicial selection process a joint effort.
- Will nominee quality be compromised by such a rushed effort? There are compelling arguments that the vetting process has gone too far in the level of scrutiny to which potential nominees are subjected. But even if you think the level of scrutiny is appropriate, it's hard to believe that the Obama administration doesn't have a list of already-vetted candidates upon whom it could draw. The presence of such a list would be testament to the effects of years of obstruction for obstruction's sake.
- Won't inter-party comity in the Senate be damaged by such hardball? (Long pause to let convulsive laughter subside...) In the short run, there could be damage to what's left of comity. But in the long run, seeing evidence that obstructing moderate nominees has political costs might lead to a more cooperative Republican caucus.
So, President Obama, if you want one more legacy item (or two, if ISIS gets crushed before January 20, 2017), here's your opportunity. At the risk of sounding cliched, don't throw away your shot.
