Garland, Gorsuch and a Question of History

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Garland, Gorsuch and a Question of History

Like Russian interference in the Presidential election and some of the actions following, I am still surprised the GOP interference in the Supreme Court nomination process even happened in the first place, even more so now that Neil Gorsuch has been nominated and gone through his hearings. And, not only am I surprised, but I’m worried too.

If Gorsuch gets confirmed, it seems safe to argue there will now be a potential political precedent for years to come for an opposition party to deny a hearing for any Supreme Court nominee for reasons that don’t even make their way up to the level of some kind of Robert Bork-styled jeremiad. It will be okay and easy to offer up something intellectually indefensible, and all will shrug their shoulders and move on from there. Will there ever be any articulation as to what should actually be done if an opposition party steals a Supreme Court seat? Whether or not it’s proper? What might deter them from doing it again in the future? Why?

Some clear lines can be drawn from this debacle. For one, there is the salient issue of dark money’s role in Garland’s lack of anything and Gorsuch’s hearings: $10 million in advertising has been spent in favor of Gorsuch by one group kept afloat by one donor; it spent $4 million in ads against Merrick Garland. When asked about the matter by Senator Whitehouse, Neil Gorsuch responded, “You’d have to ask them.”

We could, but if Zephyr Teachout’s read of the moment has any standing, Gorsuch’s pointed lack of interest in Whitehouse’s line of questioning could be drawn from the fact that—per Teachout—“Gorsuch might not just be in favor of striking down the limits that corporations can spend independently, but also the limits individuals or corporations can donate directly to candidates.”

The second clear line that can be drawn from this is a historical one: as Robin Bradley Kar and Jason Mazzone remind us in The NYU Law Review, “the Republican plan [to block Garland for a future President was and is] historically unprecedented and entails more extensive pragmatic and constitutional risks than have thus far been recognized.”

The two note that all previous challenges bearing a similarity to the Garland theft share the similarity of “a President who either (a) attained office by succession rather than election or (b) began the nomination process after the election of his successor.”

They elaborate—

[These historical precedents] only apply to Presidents who were originally elected as Vice President and assumed the Presidency upon death of an elected President. In addition, all of these cases occurred prior to the passage of the Twenty-fifth Amendment, when there was still some ambiguity over whether a Vice President literally became the President or merely acted as President under the Constitution’s rule of succession then in place.

Even when John Quincy Adams nominated John Crittenden to the Supreme Court after Andrew Jackson had been elected, the Senate resisted the nomination so that Jackson could nominate someone else instead—and Jackson had already been elected too. Even Abe Fortas’s name made its way to the Senate floor.

The decision by Republicans to pursue this path “poses special challenges to the norms of cooperation and democratic decision-procedures that have traditionally allowed appointment processes to function.” Kar and Mazzone continue: “One pragmatic risk arises from the fact that absent reliance on historical tradition, there is no evident stopping point for the particular type of breach that the Republican plan entails.”

Given the Senate’s adherence to history and tradition have been thrown out the window in relation to Merrick Garland, it is important to reaffirm that history and tradition while still acknowledging what happened. It feels paltry to suggest at the very least that Mitch McConnell and every Republican member of the Senate Judiciary Committee deserves a mark of censure for refusing to hold hearings for Merrick Garland and using the argument that they used but how does this end? How is this fixed? Do we hope everything goes back to ‘normal,’ and the longstanding tradition violated by Senate Republicans is properly viewed as an aberration not worth repeating?

Does this mean we not only need a Constitutional amendment for money in politics, as Bernie Sanders spoke about in relation to Citizens United during the Presidential campaign, but one in relation to the nomination process for a Supreme Court justice too? Do we really need to take the time to raise the spectre of violating the constitution as a consequence to deter anyone from attempting this again, even if we don’t ultimately follow through in getting the amendments passed?

On the one hand, that might not be necessary, Kar and Mazzone come to the conclusion that what the Republicans did in relation to Merrick Garland was an outright violation of the constitution, writing that—

The outright senatorial refusal to consider any nominee from the current President in a deliberate attempt to divest him of his Supreme Court appointment powers (and transfer them to his successor) may go beyond the provision of “advice and consent,” as it has traditionally been construed in the context of Supreme Court appointments, to undermine one of the President’s constitutionally-designated powers.

The reaction in relation to Merrick Garland seems to stem from the same place that is seeking to deny any connection between Russia and Donald Trump (consider Devin Nunes sabotaging the legitimacy of his own oversight panel): they are ahistorical, short-sighted, intellectually indefensible moves that do not fit within the parameters of the American constitutional project. While there is always a space for comity in the democratic project and a need to always expand the circle where nuance may be permitted and allowed, one is cautious about extending that same courtesy to an unconstitutional pursuit.

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