Soon after Justice Antonin Scalia died on February 13, the battle over who should fill the Supreme Court vacancy commenced. Senate Republicans, led by Majority Leader Mitch McConnell, took the position that it shouldn’t be President Barack Obama but the next president—whoever Americans choose—who makes the nomination.
Senators differed in their reasons for wanting to put off the selection of the next justice. The most common was that the justice would determine the ideological balance of the Supreme Court, and that voters should be able to take that into account in electing the person who, under the Constitution, does the judge-picking. McConnell announced there would be no hearings on any Obama nominee, no matter who that person might be, and no votes on confirmation. The choice of Scalia’s successor would have to wait until after the next president was sworn in.
On March 16, Obama called what he thought was McConnell’s bluff, nominating to the Court Merrick Garland, chief judge of the federal appeals court in Washington. But it wasn’t a bluff. The Republican blockade held and accomplished its purpose—to the surprise of many. Indeed, Obama and his legal team, as well as supporters in the Senate and media, were certain the McConnell strategy would fail.
Before February had ended Obama told reporters, “There’s not a lot of vigor when they defend the position they’re taking. . . . They’re pretty sheepish about it.” He added, “I think it will be very difficult for Mr. McConnell to explain how, if the public concludes that this person’s very well qualified, that the Senate should stand in the way simply for political reasons.”
The day Garland was nominated Sen. Harry Reid crowed, “Republicans are backing down so quickly that they’re already bargaining about what month they will fully cave and confirm Obama’s nominee.” Reid was one of many Democrats convinced that not only would the GOP cave, voters would “make them pay if they jerk the president around on this.”
But months went by and, to everyone’s surprise, McConnell and his troops didn’t cave. Come May, White House press secretary Josh Earnest said that the Republicans were stalling, that they weren’t “doing their jobs,” and that they were hoping that no one would notice. “I think, unfortunately, they’re going to be wrong about that.”
But the White House had a fundamental problem, which is that it had no constitutional means to compel Republican senators to “do their jobs.” The Constitution vests in the president the exclusive power to nominate a justice. But for the person to be appointed the nomination must have the consent of the Senate, and the power to consent—or not—is one that rests entirely with the Senate. Under the Constitution, that chamber gets to define how the power is to be exercised, including when to take up a given nomination.
The White House and its allies expected the lack of hearings and votes would become a political issue. It did, just not the way Democrats expected. The ideological balance of the Court became more salient than it otherwise might have been, thanks to the two candidates, especially Donald Trump. He took the unusual step of devising, and making public, a list of prospects for the Court—21 in all. Trump discussed judicial selection often, as did Hillary Clinton, and the differences between them presented voters with a clear choice.
Consider the third presidential debate. Asked how the Constitution should be interpreted, Clinton didn’t answer the question, instead identifying causes the Court should advance, among them abortion rights. Trump, by contrast, was clear: Courts should “interpret the Constitution the way the Founders wanted it interpreted. And I believe that’s very, very important.”
The Senate’s no-consent stand, together with Trump’s promise to name judicial conservatives to the Court, worked. The former made it evident that the next president would be filling the Scalia seat, and the latter made it clear that if the president was Trump, the nominee chosen would be a conservative.
The issue helped Trump more than Clinton. In national exit polls, one of every five voters said that Supreme Court appointments were the most important factor for them in voting. Of those voters, 57 percent favored Trump, while 40 percent supported Clinton.
McConnell could not have prevailed unless Senate Republicans stuck together. Over the months a few worried that it might be better to confirm Garland than risk Clinton being elected, given that she would likely make a more liberal (and younger, Garland being 63) selection for the Court. In other words, take the bird in the hand.
But most of the Republicans hung tough. And on Election Day the person elected president was not -Clinton. And once President Trump picks Scalia’s successor, the Senate, still controlled by the GOP, will doubtless move quickly, assuming a bona fide judicial conservative is the choice. There will be hearings, and there will be votes.
But even before that, the Senate did indeed do its job.
