The pre-election event I most feared has happened. Justice Ruth Bader Ginsburg has died.
Her now-empty seat on the Supreme Court has the potential to polarize our deeply divided nation even further. The last Supreme Court confirmation hearings were so poisonous I nearly quit Facebook. I saw Christine Blasey-Ford called a “lying skank,” and Brett Kavanaugh called a rapist and a “rich white man throwing a fit because for the first time in his life, he might not get what he wants,” by people who’d never met them and knew absolutely nothing about them except which political team they were batting for. I watched Senators whose job was to discover the truth instead using their time to showboat and create soundbites for their bases.
How did something as fundamental to our system of government as seating Supreme Court justices become so contentious? Why are Republicans like Lindsey Graham willing to do a complete 180 on filling this seat when he explicitly said he wouldn’t, and we have all the receipts?
“That’s gonna be the new rule,” he said, after spelling out the exact situation we now find ourselves in. Yet he has already announced that he will do the opposite of what he promised, and support any nominee President Trump puts forward now. Why would a Senator who is up for reelection take such a huge risk: being seen by voters as a shameless opportunist and proven liar?
It wasn’t always like this.
Justice Antonin Scalia, a consummate originalist and hero to conservatives, was nominated by Reagan and confirmed by the Senate in 1986 by a 98-0 vote. Seven years later, Ruth Bader Ginsburg, who would become the leader of the liberal wing of the Court, was confirmed by a 96-3 vote. (If you are unfamiliar with the beautiful friendship between these two ideologically opposed justices, you should read this.)
So what has changed? There are entire books written about this topic, but let’s just hit the highlights:
Robert Bork: In 1987, just a year after Scalia was seated, Reagan nominated Robert Bork to the Court. Senator Ted Kennedy attacked the nominee with blistering accusations based on some of Bork’s previous rulings, public statements, and his role in the Watergate scandal: “In Robert Bork’s America, there is no room at the inn for blacks and no place in the Constitution for women, and in our America there should be no seat on the Supreme Court for Robert Bork.” Bork’s fate was sealed, and his confirmation failed in a 42-58 vote, mostly along party lines. Democrats saw this as a righteous victory, keeping a dangerous and backwards ideology out of the Supreme Court. But to Republicans, it was a vicious political hit job whose unfairness was so unprecedented that it became a new word:
Clarence Thomas: Four years later, Democrats again hotly contested a Republican president’s nominee: Clarence Thomas. A former Thomas employee, Anita Hill, came forward with lurid allegations of sexual harassment, which Thomas categorically denied. Predictably, the Democrats generally believed Hill while the Republicans sided with Thomas. However, Democrats chose not to filibuster; Thomas received an up-down vote, and was confirmed to the Court—just barely: 52-48.
Miguel Estrada: In 2001, George W Bush nominated Miguel Estrada to the DC Circuit Court of Appeals, the court considered by many to be the second most important court in the country; more Supreme Court justices have come from there than any other court. Estrada had the support of a majority of the Senate, but Democrats took the extraordinary step of filibustering his appointment, at the request of liberal interest groups who called Estrada “especially dangerous” because “he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.” In other words, Democrats didn’t want Republicans to put the first Hispanic—a conservative—on the Supreme Court. Democrats claimed Estrada failed to adequately answer their questions.
Using, then killing, the filibuster: Senate Democrats went on to filibuster a total of ten Bush circuit court nominees, all of whom would have been confirmed if they’d been given a vote in the Senate. In the Washington Post, Marc Thiessen writes, “After Democrats won control of the Senate and the White House, they set about trying to fill court vacancies — particularly on the D.C. Circuit — with judges so left-wing they knew they could not meet the 60-vote ‘standard.’ When Republicans (following the precedent Democrats had set) filibustered some of President Barack Obama’s nominees, Democrats again broke precedent and eliminated the filibuster for all but Supreme Court nominees.” This is known as the “nuclear option.” Normally, it takes 60 votes to end debate in the Senate and move to a vote. But with the nuclear option, the majority party can suspend the normal rules and kill the filibuster with a simple majority vote. Majority Leader Harry Reid (D) was unrepentant.
To put it simply, Democrats set a new, more vicious precedent. When Republicans followed that precedent, Democrats went even further, using the nuclear option (what Reid euphemistically called “filibuster reform”) to force through more judges.
His smug victory would be short-lived.
Merrick Garland: In 2016, Barack Obama’s final year in office, he nominated Merrick Garland to replace the deceased Justice Scalia. Senate Majority Leader Mitch McConnell (R) refused to even hold hearings for Garland, saying his decision was “about a principle, not a person.” He claimed that with an election coming up so soon (8 months), “The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide.”
McConnell’s fellow Republican Senators agreed. Chuck Grassley said, “The American people shouldn’t be denied a voice.” John Cornyn said, “The only way to empower the American people and ensure they have a voice is for the next President to make the nomination to fill this vacancy.” James Inhofe said, “I will oppose this nomination as I firmly believe we must let the people decide the Supreme Court’s future.” Many others all said the same basic thing.
True to their word, Senate Republicans held the seat empty for a record 422 days: the longest vacancy since Congress settled on a 9-seat Supreme Court in 1869.
Neil Gorsuch: Donald Trump’s nominee to fill Scalia’s seat faced a Democratic filibuster. Republicans responded by taking Harry Reid’s “filibuster reform” one step further, extending it to Supreme Court confirmations. They used the nuclear option to change Senate rules, and confirmed Gorsuch 54-45. As Thiessen explains, “Had Democrats not tried to block Gorsuch, they would still have the filibuster. And Republicans, who now have just a single-vote majority, would have a much more difficult time mustering the votes to change Senate rules today. But thanks to Democrats’ miscalculations, the GOP doesn’t have to.”
Brett Kavanaugh: I don’t have the stomach to do a deep dive into this ugly debacle. Personally, I found Christine Blasey-Ford a compelling and sympathetic witness whose story suffered from numerous inconsistencies, and later was mortally wounded by her own attorney, who admitted her political motivations at a feminist conference: “When he takes a scalpel to Roe v. Wade, we will know who he is, we know his character, and we know what motivates him…it is important that we know, and that is part of what motivated Christine.” I thought Brett Kavanaugh hurt his credibility with his combative testimony, but that ultimately the charges against him were never satisfactorily proven.
But it doesn’t matter what I think. I watched in horror as seemingly every other person in America became 100% convinced they knew the absolute truth of what did or didn’t happen that night so many years ago, and ruthlessly judged half the country based on that certainty. The Kavanaugh hearings illustrated like nothing before how hopelessly divided by tribalism we’d become.
I have only anecdotal evidence, but the Kavanaugh hearings seemed to galvanize Republicans who’d been on the fence about Trump.
The minority Democrats, without the filibuster, were powerless to stop a vote on Kavanaugh. He was confirmed 50-48.
Which brings us to today. Now, with six weeks left before the election, the Republican White House and Senate find themselves with an empty seat on the Supreme Court. Four years after insisting that the American people should make the choice in this situation via the election—indeed, after giving their word that they would not fill a seat in this exact situation—they are poised to prove that they never meant a word of it.
The truth is they denied Merrick Garland a vote because they didn’t want him on the Court, and they had the power to stop him. They’ll fill RBG’s seat despite their promises because they want to, and they have the power.
They learned all about using your power to get what you want, precedent be damned, from the Democrats. Some of whom, by the way, are already threatening to “pack the Court” once they retake the White House and Senate. They can just change the rules yet again, adding more seats to the Court and filling them with left-leaning justices. It’s a plan RBG condemned: “If anything would make the court look partisan,” she said, “it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.'”
But Democrats are rightly enraged by Republicans’ reneging on their promises and lighting their supposed principles on fire the instant it’s in their interest—which Republicans say they’re doing because Democrats would do the same.
And so it’s a race to the bottom, with each side becoming ever more brazenly committed to gaining and keeping power at any cost.
Something has to give. Someone has to choose to compromise, to find some common ground, or this will not end well for America.