Slate’s legal correspondent, Dahlia Lithwick, has had it up to here with Senate Republicans, who are refusing to hold hearings on President Obama’s Supreme Court nominee, Merrick Garland, with the presidential election so soon. Something must be done, she claims, and, well, here’s something:
Lithwick reckons if Garland did this “he would be doing his job and highlighting that this is precisely what Senate tantrum throwers are refusing to do.” Lithwick further argues such radical gestures are necessary because there’s both an “intensity gap” and an “insanity gap” between Republicans and Democrats, such that only Republicans are willing to blow up the Supreme Court nomination process to retain power.
What’s baffling about this column is the way it ignores who is really responsible for how judicial appointments became so contentious. After Senator Joe Biden took over the Judiciary Committee in 1987, Democrats, under his leadership and that of Ted Kennedy, proceeded to blow up the nominations of Robert Bork and Clarence Thomas in ways that were positively slanderous. In 1992, Biden personally argued for waiting out Bush’s term before confirming any more justices. At the end of George W. Bush’s presidency, the Democratic Senate had a backlog of over 200 judicial nominations on which they refused to move as they waited out his term.
The GOP is not immune to the charge of fighting fire with fire. It is, however, historically illiterate to say that Republicans share equal blame with Democrats, who have done far more to destroy comity and deference on this issue. Indeed the problem with violating institutional norms is that once such violations become acceptable, it only encourages more—and more egregious—violations.
In 30 years we’ve gone from overwhelming Senate consent on most judicial appointments to a process that verges on complete dysfunction. And now when liberal columnists see what the Democratic party hath wrought, they respond by making rather alarming and immodest proposals that would ignore the Senate entirely in the name of upholding constitutional procedures.
To paraphrase Santayana, those that ignore the United States Constitution are doomed to repeat the very lessons of history that caused it to be written in the first place.
