I think Ramesh Ponnuru gets it right here: SCOTUS has regrettably become a battleground too similar to others. As a result neither side ought to be expected to play the chump. There’s no question that if the roles were reversed, so would be the arguments.
The Constitution gives President Obama the power to nominate someone to fill it, and gives the Senate the power to decide whether to hold a vote on his nominee. Those who want Obama to have another Supreme Court appointment are going to make their arguments that time-honored norms militate in favor of what they want, and those who don’t will find time-honored norms that militate the other way. The fact that this president has repeatedly stretched the Constitution will doubtless also be part of the debate, as it should be.
But the norms surrounding the Court also need to be rethought in light of the role it has come to play in our national life over the last few decades. Senators—first the Democrats, then the Republicans—have already largely abandoned the old norm of “deference” to a president’s nominees: the idea that a nominee should be confirmed so long as he is ethical, has the relevant credentials, and is respected by other lawyers. As the Court has taken on more legislative authority, senators have begun to evaluate nominees as potential lawmakers.
As presidents also evaluate them. Obama has made it clear that he wants justices who will satisfy certain liberal litmus tests.
If the Supreme Court were a fundamentally apolitical body in the relevant sense—if the justices were engaged in the interpretation of legal texts in as neutral a manner as possible, letting the chips fall where they may; if, because they were neutrally interpreting a Constitution that does not grant them significant authority to decide nearly as many policy questions as they do, their decisions mattered less for the direction of public policy; if the justices disagreed merely on the close and technical questions that even a sound judicial philosophy would leave open—then it would be entirely reasonable for senators who disagree with Obama on most issues to vote for his judges anyway. And it would be entirely reasonable to facilitate Obama’s replacement of Justice Scalia, even in a presidential-election year.
But that is not the situation we are now in, and Republicans should have no compunctions about acting accordingly.
I sure can remember the monumental shift in my own thinking caused by the Bork disgrace. Shannen Coffin recounts some of the Dem’s gamesmanship here:
The Supreme Court has taken a place as one of our key political institutions, quite wrongly. That people would instantly think of the politics of the appointment process is simply a natural byproduct of the outsized role the Court has taken in American life.
As far as those politics go, there simply is no precedent in modern times for filling a vacancy that arises in an election year. You have to go back to Benjamin Cardozo in 1932 to find a similar circumstance. Democrats have pointed to the appointment of Anthony M. Kennedy in 1988, but that vacancy arose in June 1987, the summer before the election, and only remained open because Democrats had already blocked one of the most qualified nominees in our history from the Court (Robert Bork).
Beginning largely with Bork, Democrats have shamelessly politicized the confirmation process in the last several decades. More recently, they changed longstanding Senate rules for the sole purpose of packing the D.C. Circuit (viewed by most as the most important appellate court short of the Supreme Court) with Obama appointees. That after blocking highly qualified Republican nominees for those same seats during the Bush administration. My dear friend Peter Keisler was nominated by President Bush to the D.C. Circuit in the summer of 2006, fully two and half years before President Bush would leave office. Peter never got a vote out of the Judiciary Committee, let alone a floor vote in the Senate. Once the Democrats took control of the Senate that fall, Peter’s nomination was dead. And not for any reason having to do with Peter’s qualifications, which were superb.
Democrats have viewed their role in the confirmation process as an exercise in raw political power. Their complaints that the American people should not be trusted to decide who should fill this vacancy as part of the presidential election ring hollow.