Democrats were outraged when Senate Majority Leader Mitch McConnell announced that the Senate would not consider any Obama nomination to replace Supreme Court Justice Antonin Scalia. We were amazed ourselves, but not remotely outraged. The surprise was that Republicans had at last decided to play for keeps, the way Democrats have long done.
As is his wont, President Obama responded by giving the nation a self-serving lecture about constitutional proprieties. His courtiers cried out that Republican obstruction was unprecedented, even though it wasn’t. They even hinted at racism as a motive. In other words, this ersatz drama has been par for the course.
Then up popped old C-Span clips. One after another, Democratic Sens. Harry Reid, Chuck Schumer and Joe Biden were revealed to have argued, as though from profoundly-held principle, exactly the opposite of what they are saying now. There they are, in all their glory, thundering that the Senate has no obligation to take up a president’s nominee. Even Barack Obama, during that short time when he put together a gossamer-thin Senate record, once tried to block a vote on a (Republican) president’s Supreme Court nominee.
When the parties accuse each other of cynically and selectively reversing past opinions on court nominations, it’s tempting to dismiss the back and forth as immaterial political ping-pong. But that would be to ignore the Democrats’ impressive dominance of this sport. Ever since the 1980s, they have been escalating judicial nomination fights, dreaming up ever more egregious and underhanded ways of inflicting defeats on Republican presidents in an effort to ensure the court keeps on blessing expansionist liberalism.
Now, finally, and not a moment too soon, Republicans seem to have decided it’s time to be as resolute as their opponents.
Senate Democrats first tasted blood in the 1987 fight over Ronald Reagan’s third Supreme Court appointment. Judge Robert Bork, a prolific legal writer and outspoken conservative, did himself no favors in his confirmation hearings, not realizing that he faced liberals fearful that their political control of the judiciary was eroding. Despite Bork’s impressive qualifications, his undisputably important scholarship on antitrust law, and his recent unanimous confirmation as a circuit judge, left-wing senators torpedoed his nomination.
Their tactics were so disgraceful that “Bork” became a transitive verb, applied to the deliberate destruction of an outstanding person with lies, distortions and general character assassination. This original “Borking” was a huge success, and not just because it stopped Bork, and not even just because Reagan’s subsequent choice, Anthony Kennedy, did far less to bring balance back to a very liberal court. The next Republican president, George H.W. Bush, was so cowed by the Bork experience that he chose a nominee whose beliefs were a mystery. That was David Souter, whose 1990 appointment brought another reliable liberal to the court.
In 1991, when Bush finally did appoint a conservative, an unflattering FBI interview with a co-worker about his tenure at the Department of Education was leaked. The borking of Clarence Thomas that followed nearly kept him from being confirmed. But, and this is notable, the Democrats had not by then gone so far as to filibuster a nomination. That escalation of their Supreme Court warfare was still to come.
In 1992, Sen. Joe Biden, D-Del., announced on the floor of the Senate that the body should not consider any Supreme Court nomination Bush made before that year’s election. “Action on a Supreme Court nomination must be put off until after the election campaign is over,” Biden said, augustly adumbrating what he hoped everyone would take as a fair-minded principle. But he was, in truth, going further than Republicans are now. Bush was not a lame duck president at that point, as Obama now is, but merely a sitting president in an election year.
Eight years later, when George W. Bush became president, Senate Democrats made an important strategic decision. It was no longer enough, they decided, to pull out the heavy guns for Supreme Court nominations. Rather, wherever an excuse could be found for a confirmation fight, Bush would not even be permitted to appoint judges to the circuit courts below.
Senate Democrats refused to hold hearings for some of his well-qualified nominees, especially the ones they believed might someday be destined for the Supreme Court. After Democrats lost the Senate in 2002, in another unprecedented act, they filibustered several circuit court nominations so there could be no vote. Not all, but most of these were confirmed after the 2004 election, when Democratic hope of outlasting President Bush died and Republicans added to their Senate numbers. Even then, it required heavy threats and a bipartisan agreement involving seven unusually reasonable Democratic senators to make this happen.
It was at this point that Senate Minority Leader Harry Reid, D-Nev., notoriously declared on the Senate floor that the chamber was under no constitutional obligation to vote on a president’s judicial nominees — words that should now be replayed again and again.
In 2006, the retirement of Justice Sandra Day O’Connor and the nomination fight over her successor threatened to tilt the court’s balance. Here, the Dems escalated again. Sen. Barack Obama, with Sen. John Kerry and a large number of other Democrats, attempted to prevent a floor vote on the nomination of Samuel Alito by filibustering. They failed, but once again they had set a new standard with the tactics they would use to nix even the best-qualified judges if they were principled textualists who declined to waive the Constitution in service of left-liberal power grabs.
In 2007, when Bush still had 18 months left in office, Sen. Chuck Schumer, D-N.Y., stated in a speech that the Democratic majority should consider no further Bush Supreme Court appointments “except in extraordinary circumstances.”
Throughout this entire period, Republicans did nothing to derail President Clinton’s or Obama’s Supreme Court nominees. And only in Obama’s second term did they begin genuinely to resist rather than merely delay lower court postings, finally learning from Democratic tactics of a decade earlier.
And so Reid responded in 2013 with yet another escalation, doing something he had adamantly opposed during the Bush years. He unilaterally changed Senate rules without the required two-thirds vote, so that a minority could no longer obstruct lower court nominations the way Democrats had once tried.
So here were are. We have arrived not at a moment of moral equivalency but at a moment to which Democratic escalations have brought us, where the judicial nomination process is a live firefight on the political battlefield. For once, conservatives appear determined to play as hard to win as the Left does.
The only unprecedented thing about McConnell’s surprising refusal to take up an Obama Supreme Court nomination is that finally, after 30 years of watching Democrats roll their tanks up to the courthouse, Republicans have finally wised up and started playing by the same rules.
