Silly Season in the Senate…

Even before President Trump nominated Judge Brett Kavanaugh for the position of Associate Justice of the United States Supreme Court, the opposition decided to cue Judy Collins.

Following the dictates of his party’s various special interest constituencies, Senate Minority Leader Chuck Schumer (D-NY) pledged to oppose the nomination “with everything I’ve got.”

Partisan onlookers chided their respective opponents with cries of “the Biden Rule” and “the McConnell Rule.”  Never mind that neither of these inventions are actually “rules” – they were instead short-term political postures, meant to cloak in-the-moment political opportunism beneath a (very thin) veneer of principle.

Democrats insist that there must be retribution for the Republican gambit, led by Senator McConnell (R-KY), wherein they refused to take up the nomination of Judge Merrick Garland.  This outcry is a rehash of last summer’s gnashing of teeth when the President nominated then-Judge Neil Gorsuch.  How long will they decline to “move on” and keep making this argument?  Indefinitely.  You can still find plenty of Republicans complaining about the scuttled nomination of Judge Robert Bork, and that was over 30 years ago.

This author warned that any nominee from the President was going to be cast as evil incarnate.  What was not predicted was how painfully transparent some of this opposition might be.

Bottom line: Much of what we’re witnessing is a ruse.  The odds of a straight-from-central-casting conservative nominee like Judge Kavanaugh being voted down by his own party are negligible.  The tantrums we are witness are meant to do two things: (1) fire up the base for the November elections, and (2) raise money.

Setting the circus aside for a moment, there are only two intellectually-honest approaches for U.S. Senators – adhere to the historical conception of the “advise and consent” role, or adopt a “hyper-partisan” philosophy.

The historical “advise and consent” role was observed for most of the country’s history.  The Senators provided advice to the President, the President would consider this advice and nominate a candidate, and the Senators would determine if the candidate had appropriate credentials for the position.  If the candidate had these credentials and was not the President’s slovenly/inebriated brother-in-law, the nominee was approved.  Sometimes by voice vote (where no official roll call was even tabulated) and sometimes on the same day that they were nominated.

In the modern era, this began to wither in the Nixon years.  Senators voted down two controversial nominees offered by President Nixon to replace Justice Fortas.  When nominated by Nixon to serve as Associate Justice, eventual Chief Justice William Rehnquist would be opposed by about two-thirds of Democrats.  This distinguished him among his contemporaries as being the first nominee in the modern era to receive significant votes in opposition purely on the basis of his judicial philosophy.

17 of the 24 nominees who preceded Nixon (through the administrations of Hoover, Roosevelt, Truman, Eisenhower, Kennedy, and Johnson) were confirmed via voice vote.  The late Justice Thurgood Marshall, as the first African-American nominee, was deemed to be a controversial in some quarters and was one of the seven who received a floor vote.  He was confirmed 69-11.  (Interesting to note that 10 of the 11 “nay” votes came from Democrats; likewise 17 of the 20 who declined to even cast a vote were Democrats)

The Rehnquist hiccup was unfortunate, but soon appeared to be an anomaly.  The next three nominees were confirmed unanimously.  For all the controversy surrounding President Ford and how he came to the Oval Office, the Senate confirmed liberal Justice Stevens 98-0.  Moderate Justice Sandra Day O’Connor fared even better, being confirmed 99-0.  Outspoken conservative stalwart, Justice Antonin Scalia, was confirmed 98-0.  Regardless of the judicial philosophy of the nominee or which party controlled the Senate, those years seemed to herald a return to “advise and consent” normalcy.  Qualified candidates were confirmed.  Unanimously.

All sense of normalcy evaporated with the nomination of Judge Robert Bork, a man whose treatment would results in his last name later being used as a verb.  In March of 2002, the Oxford English Dictionary would add the word “Bork” and define it as “To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.”  This was later revised as “Obstruct (someone, especially a candidate for public office) by systematically defaming or vilifying them.”  This “Borking” started within minutes of the Judge’s nomination when Senator Ted Kennedy (D-Mass) strode to the Senate floor and delivered one of the most dishonest speeches in recent political history.  Even a fawning obituary of the late Senator in The Economist admitted that Judge Bork was correct when he maintained that “There was not a line in that speech that was accurate.”

Though clearly qualified beyond any conventional measures at the time, Judge Bork’s judicial philosophy was perceived as a threat to decades of liberal public policy gains from the Court.  Too, he was slated to replace a far more liberal Justice on a Court that already had two conservative Justices.  He was viciously smeared and ultimately rejected 42-58.  Eventually, Justice Anthony Kennedy would be confirmed in his place, with the vote tally being 97-0.

Justice David Souter would be confirmed next with a 90-9 vote (among the exclusively Democrat “nays” were the late Senator Kennedy and Senator John Kerry (D-Mass); proving that, by that time, they couldn’t even see their way clear to confirm an actual liberal Justice unless they were sure of his liberalism).  A dark horse candidate with very little legal writings to examine, Justice Souter’s nomination still faced some of the usual tripe about his being a “shadow candidate” who would strike down Roe, upend hard-fought civil rights, and on and on.  Instead, he became one of the most consistent liberal votes in modern times.

Then came Clarence Thomas.  His nomination was confirmed 52-48 in a process that soon dwarfed the Bork nomination in its unseemliness.  A volley of unproven accusations were all the cover needed for every opponent of his judicial philosophy to vote thumbs down.

Thus during the 22-year period from 1969-1991, a total of 15 nominees were offered to the Senate by Republican Presidents.  The scorecard included 11 confirmations, 3 rejections, and 1 withdrawal.  Though nominated exclusively by Republicans, the judicial philosophies of the confirmed Justices ranged across the spectrum of judicial philosophy.  As has been illustrated, the trend was moving away from the “advise and consent” orientation toward the “hyper-partisan” orientation.  Two of the previous four nominees had been personally and professionally savaged in the process.

Then, after 25 years in the SCOTUS nomination wilderness, a Democrat would select a nominee when President Clinton offered Judge Ruth Bader Ginsburg to the Senate for confirmation.  A former General Counsel for the ACLU with decades of liberal advocacy and writing, there could be little doubt as to the kind of Justice she would be.  Fresh from the unjust treatment of the Bork nomination and the bruising confirmation of Justice Thomas, the Republican Senators might be predicted to retaliate.  Instead, Justice Ginsburg was confirmed by the overwhelming margin of 96-3.

Not one year later, President Clinton offered a second Democrat nominee, Justice Stephen Breyer.  Justice Breyer previously served as Chief Counsel to the Senate Judiciary Committee, then chaired by Senator Kennedy – the very man who led the vicious smearing of Judge Bork.  Again, Republican retaliation might have been expected.  Instead, the Justice was confirmed by a vote of 87-9.

Thus, after what had been a period of decline in Senatorial behavior with SCOTUS nominations from “advise and consent” to more “hyper-partisan,” Republican Senators overwhelmingly declined to continue on the hyper-partisan path.  Opting for greater Senate comity, they were notably different than their predecessors in moving back toward a historical “advise and consent” orientation.

It proved to be of little use in nudging Democrat Senators toward similar behavior.  The next nominee, eventual Chief Justice John Roberts, was relentlessly attacked as an ideologue and efforts to scuttle his nomination were even embraced by mainstream news outlets (the most craven of these being a disreputable attempt by the New York Times to inquire into adoption records concerning Justice Roberts’s children).

Chief Justice Roberts was ultimately confirmed 78-22.  Senate Democrats split their votes, 22 “yeas” and 22 “nays.”  Though the Democrat party seemed unclear as to which path to follow (“advise and consent” vs. “hyper-partisan”), a closer examination revealed some duplicity.  Those Democrat Senators nestled in safe “blue state” seats (e.g., future President Barack Obama) generally voted “nay,” whereas those Democratic Senators who found themselves in “swing states” or “red states” generally voted “yea.”  What appeared to be a divide on the surface was, in reality, thinly veiled political opportunism.

That opportunism was completely unmasked by the time that the next nomination, for Justice Alito, was submitted.  Despite his being endorsed in writing by all of his colleagues (almost all of whom were liberal Judges) on the Third Circuit Court of Appeals and being rated as “Well Qualified” by the American Bar Association, he was accused unjustly of outright bigotry by Senator Kennedy… to the point where the nominee’s own wife fled the proceedings in tears.  (An interesting side note: Among the many briefs filed in support or opposition to the Alito nomination were those from faculty members at some of the most prestigious law schools across the country.  Roughly 500 faculty members expressed their opposition to the nomination.  Fewer than 10 faculty members expressed their support.  This confirmed an oft-repeated assertion that American law schools are among the least diverse institutions in the country.)

This distasteful display was worsened all the more when Senator Kerry, fresh off of losing a Presidential election, led an attempted filibuster, even going as far as to launch the effort while abroad.  A majority of Senate Democrats joined the filibuster effort, including Senators Obama, Biden and Schumer.  The effort failed and Justice Alito was eventually confirmed 58-42, earning votes from only four Democrat Senators – all of whom hailed from deeply red states.

Regrettably, after years of this treatment, Republican Senators would abandon their historically-principled “advise and consent” role and begin to behave like their hyper-partisan Democrat colleagues, first in the confirmation vote for Justice Sonia Sotomayor (68-31, with all but 9 Republicans opposing) and then in the confirmation vote for Justice Elena Kagan (63-37, with all but 5 Republicans opposing).  In a scene that was hypocritical to the point of laughable, President Obama, Vice President Biden, Senate Majority Leader Harry Reid (D-NV), and Senator Chuck Schumer all urged Republican Senators to avoid filibustering the nominees and simply cast and “up-or-down vote.”  To their credit, Republican Senators decided not to mount any filibuster attempt for either liberal nominee.

Where the Republican Senators did break new ground was their unprecedented refusal to take action on President Obama’s nomination of Judge Merrick Garland.  His nomination technically lasted 293 days but, in reality, was dead on arrival.  From one perspective, the whole Republican Senate caucus acted in a manner that was tantamount to a filibuster.  They correctly surmised that the Democrat Party hadn’t paid a political price for their obstruction of Supreme Court nominees and calculated that they would similarly survive any political blow back.  In fact, their tactics may have been a 2016 electoral boon for their party as voters who identified Supreme Court nominations as the most important issue broke decisively for the eventual winner, President Trump.

President Trump’s first nomination of Justice Neil Gorsuch.  Democrat Senators, still (and understandably) seething over the failed Garland nomination, were quite open about their retaliative motives.  They filibustered the nomination and the Republican majority changed the rules to disallow filibustering of Supreme Court nominees (former Senate Majority Leader Harry Reid having already eliminated the filibustering option for all other judicial nominees). The Democrats near-universal opposition failed to block the nomination and Justice Gorsuch was confirmed by a vote of 54–45.  Though some portion of the opposition from Democrat Senators was presented as principled dissent about the treatment of Judge Garland, the voting pattern was identical to those of the Roberts and Alito confirmation votes.  Three Democratic Senators from deep red states, worried about their reelections in the following year, voted for confirmation.  The remaining Senators, virtually all of whom were in “safe seats” voted “nay.”

Which brings us to the present day and the nomination of Judge Brett Kavanaugh.  What to do?

It’s quite simple.  Choose the “advise and consent” path or choose the “hyper-partisan” path.  But, whether it’s Senator Schumer or a casual observer of the process, at least admit what you’re doing.

Adopting the “advise and consent” path means that Senators provide advice to the President on prospective nominees to the Court.  Once the President nominates a candidate, the nominee should be confirmed if they are qualified for the position and devoid of significant legal/ethical concerns.

Adopting the “hyper-partisan” path means that Senators fully utilize any and all political tools at their disposal to support nominees who subscribe to their judicial philosophy and block nominees who do not.

Choosing the first option not only restores comity to the United States Senate, it reduces the distasteful politicization of the Court and preserves its independence.

Choosing the second option increases the political divide in our country and threatens the integrity of the one branch of government that, by design, was intended to be the least political of the three branches.

Senator Schumer has flatly rejected the first option (one that, incidentally, this author has held for his entire adult life).  But if he is to going to embrace the second option, it’d be progress if he would just freely admit it.