Dude, before you push that red button…
In 2013, Senate Majority Leader Harry Reid (D-NV) “went nuclear.” Frustrated by Republicans in the senate who were blocking confirmation of several of President Obama’s judicial appointments, Reid had had enough. If he couldn’t win with the rules in place, he would just have to change them. He changed the Senate rules to require only a simple majority vote to confirm all federal judicial appointments except for those to the U.S. Supreme Court. His move broke the deadlock, allowing Senate Democrats to move forward with confirming Obama’s nominees. But his decision to change the Senate’s rules evoked a quick response from senate Republicans:
From the floor of the Senate, Senate minority leader Mitch McConnell (R-KY) warned Reid that “you’ll regret this, and you may regret this a lot sooner than you think.” Perhaps Reid came to regret his decision, but surely Charles Schumer (D-NY) has.
Just four years later in 2017, with the Republicans now in the majority and facing democratic resistance to the confirmation of Supreme Court Justice nominee Neil Gorsuch, Senate Majority Leader Mitch McConnell (R-KY) followed the Harry Reid playbook, and hit the big red button himself. In doing so, McConnell tore down the last guardrail protecting federal judicial appointments, allowing the Senate to confirm a Supreme Court nominee by a simple majority, rather than a 3/5ths majority (60) votes. McConnell wrangled a 54-45 vote, enabling Gorsuch to take his place as an Associate Justice on court.
Just a year later we endured another Supreme Court confirmation hearing, this time for Brett Kavanaugh. The spectacle was painful to watch (and surely to endure if you were the nominee). McConnell was able to manage a thin slim 50-48 vote, sending Kavanaugh to the bench.
Today we find ourselves amidst yet another Supreme Court confirmation hearing. McConnell, looking for a rare Supreme Court trifecta, must once again gain a simple majority vote to get the nominee confirmed. As he tackles this task, he is facing the predictable barrage from the minority party yelling how unfair, how hypocritical, how undemocratic it all is. There are the expected harangues of “Well, you said…”, “Oh but now the show is on the other foot and…” and my personal favorite “we should let the American people decide…”.
What the Constitution Says
Our constitution provides a simple process for filling a vacancy on the U.S. Supreme Court. The President must put a nominee forward, and the U.S. Senate is obligated to either confirm or reject that appointee. It is both simple and elegant.
What the Constitution Does Not Say
The constitution does not say that nominations and/or confirmations should or will not occur in election years (presidential or otherwise). It does not say that if one party does something, the other party must reciprocate.
The X Rule
The constitution’s elegance and simplicity sometimes doesn’t afford enough gray area. And gray is what you need to develop rationalizations when you want to do something outside the rules. So Senators on both sides went “off script,” and created some gray by presuming to create their own “rules,” as in the “Biden Rule,” or the “McConnell Rule.” These were not formal rules; the “rules” are mere colloquialisms. Don’t bother looking to the constitution for the “Biden Rule” or the “McConnell Rule” or the ‘whatever’ rule. You wont find them mentioned there.
It is down this “rules” path we have been marching for a few years now. A senator decides he is smart enough not just to opine on the constitution, but also to get around it, even putting his own mark on it. Being too clever by half, they later come to grief when the other side uses their brilliance against them. Because they aren’t actual rules, you can’t play by them and you don’t have to follow them.
Today we see the supreme court nomination/confirmation process entangled in the quagmire of such “rules” combined with political vitriol and a presidential campaign. The question is how much damage will be done by it all, and how much of it we can repair. There will be a point soon where the damage cannot be undone.
Change is Not Always Good
Until recently senators generally voted based on the qualifications of the nominee as a jurist, i.e. whether they have the training, the experience and the character to receive a life-time appointment to the Supreme Court. They rarely voted on whether the nominee promised to vote to achieve a specific outcome. Qualified jurists, once nominated, were confirmed with wide margins. In 1986, the Senate confirmed conservative Antonin Scalia with a 98-0 vote. 7 years later, in 1993, the Senate confirmed the socially liberal Ginsberg a 96-3 vote. There was little doubt what each would do once on the bench, yet members of the minority cast a vote for confirmation.
This mindset has been changing over the last generation. In the early 1990s our political environment began what has become a generation not just of change (which is always with us), but rather one of destructive change. That change has since been tearing at the seams of our nation’s political fabric. Perhaps this trend really took hold with the behavior of Newt Gingrich (R-TX), who led an insurrection within the Republican party, adopting a scorched earth approach in his politics. This destructive change includes no longer accepting the concept of a loyal opposition. Instead of accepting an electoral loss with the attitude of “that’s fine, we will defeat them in the next election,” we now engage in “resistance” whose goal is the destruction of the opponent, their party and their supporters. Devolving from moderated opposition, to open efforts to delegitimize and destroy the victor was a major cause of the fall of the Roman republic/empire. It is a warning sign that our republic today cannot, must not ignore.
The Supreme Court Circa 2020
It is doubtful that our nation’s founders intent was to have supreme court nominees endure a public spectacle whose purpose is to confirm whether they will vote to achieve a particular outcome, shape their decisions based on a particular social justice agenda or, in an a new height of ignobility, accuse the nominee of entering a Faustian bargain with a president for their nomination to the court.
On the Democratic side, the current hearings are a spectacular exercise in political theatre amidst a presidential campaign. Mostly the democrats are foregoing the practice of asking questions to better understand the nominee’s experience on the bench and judicial philosophy. Many of them are using the hearings as a real-time political exercise in fear-mongering. Some are abandoning principle and using the hearings to play a part in a live presidential campaign ad. Some are choosing to demand the nominee commit to particular outcomes on a range of issues from abortion, to health care, to LGBTQx rights and various social justice agenda items. And they have hijacked the time-honored tradition of citing examples of the good in American citizens as part of the political theatre. This hijacking has turned an otherwise uplifting exercise into a repugnant act, using as political props American citizens who find themselves in tragic and difficult circumstances.
On the republican side, the hearings are the opportunity to take the procedural ‘high road’ and gain confirmation of the nominee. “The president nominates and the senate must vote to reject or confirm” is their battle cry. Perhaps they suffer from a minor case of amnesia – think “Merrick Garland.” They ignore the all too close to home charge of hypocrisy. It would be remiss to fail to mention that some of those on the high road are also choosing to get into the acting business – serving as their own live presidential campaign ad for the Trump-Pence ticket. And I cannot fail to mention those on the Republican side who are engaging in their own the fear-mongering campaign as they raise the spectre of court packing by a future President Biden.
A Lowly Affair
In truth, neither side stands upon the high-ground in these confirmation hearings. Were the situation today reversed, the Democrats in the senate would do the same thing the Republicans are doing – notwithstanding their well feigned outrage today. What is amazing in one sense about all of this is how U.S. senators can sit in their chairs and utter such hypocrisy with a straight face? In another sense, it is amazing how many people seem to listen to and simply believe what “their side” is saying. We could use a little more thoughtful and honest consideration in our politics.
Each side laments the current state of the Senate, yet neither will stand up and say “we will do what is necessary to take this body back to where it once was and where it needs once again to be.” Each side demands that it must be the other side that steps up and does what is right.
Here, the Democrats in the Senate need to have the backbone to say “we will do what duty requires us to do” regardless of how painful it will be. In the future, should Joe Biden be elected to the presidency, the Republicans need to do the same thing when his appointees are sent up to the senate for confirmation. And they need to have the courage to take the action regardless of whether their constituents immediately support them. They must educate and inform their voters regarding actions taken – why their difficult vote was in fact in the long-term interests of our nation. Will this happen? Sadly, not. The democrats won’t be the ones to stand up and do what must be done; the republicans would likely not were the situation reversed. Where does this leave us? Right where we find ourselves today – longing for every United States senator to stand up, put their rationalizing aside, and put us back on the road to an ever more perfect union.
In the end, is Senator Schumer regretting that the good Senator Reid went nuclear? Is Senator McConnell relishing his pushing Reid to go nuclear? Does he feel a sense of satisfaction that he too chose the nuclear option? A better, more revealing question might be whether any of the senators taking part in the Coney Barrett confirmation hearing believe it is time the U.S. Senate returns to its role as the upper chamber in the Congress? Is it time for the U.S. Senate to serve again the purpose our founding fathers, acting with insight into human nature and with intent to create an enduring republic, meant it to? Yes. The Senate needs to return to and honor the simple process the Constitution spells out – vote to confirm or deny the nominee. And do so based on the nominee’s qualifications alone.
If the Senate cannot or will not do this, we face a future of litmus test appointees, vitriolic confirmation votes, and further diminishment of faith in the Supreme Court as an institution. The Supreme Court will become a permanently polarized body, with the Democrats and Republicans forever retaliating against one another, using the court as a lever. The 3rd branch of government will cease to do what the Founding Fathers intended, and what our national fabric requires of it.
Time to Act
One of the most common phrases uttered by democrats the last few days is “because we can.” It is their rationalization for why the republicans are moving forward with the vote on Amy Coney Barrett. This, however, is a red herring. It is rationalization to try to convince people that the republicans are wrong to move this forward. It is the reason we will find ourselves on the other side of this event in history, that much further down the road of chaos, instability and the the destruction of our political fabric. Perhaps one day soon, at least one member of the U.S. Senate will wake up, look at themselves in the mirror, and say “I will no longer be a part of this. I will do what must be done.”
For the last generation, we have been watching our politics change for the worse. And too many of us have been sitting silently while that change was happening. As a Republican, I abhor the treatment Senator McConnell orchestrated around the Merrick Garland nomination. Equally distasteful is the attempt by either party to block confirmations not just of judicial but all nominations requiring senate confirmation on political grounds. Presidents have won the right to nominate their staff and judges, and to have them confirmed by the opposition unless there is a demonstrable flaw in ethics or lack of qualifications. And this works in both directions. Loyal opposition does not mean wrecking the administration of government via a malevolent confirmation process.
I don’t know about you, but I am sick and tired of hearing people say “we used to be able to…..but today we are where we are so ……”. It is time for those of us in the middle to stand up and say “I have had enough of this. Those of you on the ends of the spectrum are entitled to hold your opinion and to vocalize it. You are not, however, entitled to to shout down my opinion. You are most certainly not entitled to cancel me. And disagreeing with you on policy or philosophy, or taking exception to the way you describe something, does not make me a racist, intolerant, misogynistic or homophobic.
My vote counts too, and I will vote for a return to civility, rationality, balance and continued progress in our nation; a return to recognizing the rights of those of faith to practice that faith in any way which does not harm others.
I will not stand idly by and watch our nation turned into a bunch of tribes by those who preach division in the name of unity. I will not stand idly by and watch my country consume itself from within through the ‘burn it all down’ approach of those embracing identity and social justice politics.”
It is time for the middle to stand up and say once again – “To win, you must convince us.” The siren voices on the far left and far right may be intransigent, they also cannot win the day by themselves. The voices on the ends are important – they are a constant catalyst to moving the conversation and the nation forward. They are not, however, the critical element. Those of us in the middle need to tell our Senators and Representatives that we expect them to be the adults in the room, to be thoughtful in action, and courageous in doing what is right for our nation. And we need to remind them that in the end, the middle decides, and we are that middle.