The Supreme Court and the Republican Coup D'etat
Geoffrey R. Stone
In 2005, President George W. Bush nominated John Roberts to succeed Justice Sandra Day O’Connor. At this time, Justice O’Connor was the Court’s pivotal “swing” Justice. In many of the Court’s most important cases, she cast the deciding vote. Moreover, she generally leaned left on such controversial issues as abortion, the rights of gays and lesbians, affirmative action and campaign finance reform. There was thus little doubt that, if confirmed, John Roberts, who was well-known for his conservative views, would move the Court significantly to the right.
As a liberal, this did not make me happy. Nonetheless, after some reflection, I published an op-ed in the Chicago Tribune calling on Democratic senators, and on liberals generally, to “sheathe their swords” and to support the President’s nomination. Although I fully understood the impact Roberts’ confirmation would have on the Court, I nonetheless endorsed his confirmation.
I explained in the op-ed that, although Roberts had established himself as a “dyed-in-the-wool conservative,” unlike Justices Antonin Scalia and Clarence Thomas, he was not “ideologically rigid.” I applauded Roberts for being a “good lawyer” and a “good craftsman,” and I predicted that, based on his past record, he would be “a principled, pragmatic justice” who could be expected to “act cautiously and with a healthy respect for precedent.”
I therefore reasoned that, although Roberts definitely would not have been my choice for the Supreme Court, he was a well-qualified, moderately-conservative nominee who should be confirmed. More precisely, I concluded:
Of course, the Senate must fulfill its constitutional responsibility to interrogate the nominee to ensure that he is, in fact, the person I have described. But if he is, he should be warmly embraced as the best the nation could expect from this administration — a brilliant, decent individual with superb legal skills and without a rigid ideological agenda.This is the approach that every principled and responsible member of the Senate should take to the Supreme Court confirmation process. If a nominee is well-qualified and reasonably moderate, the Senate should confirm. Period. That’s what “advice-and-consent” means. It serves as a check against the possibility that a President will abuse his authority and appoint an individual who is unqualified, who has serious ethical issues, or whose views are out of the “mainstream” of legal thought. But if the nominee is well-qualified and reasonably moderate in his views, the responsibility of the Senate is to confirm.
Indeed, this is precisely the approach the Senate has taken to every well-qualified and reasonably moderate nominee for over half-a-century. Every such nominee, ranging from Lewis Powell to John Paul Stevens to Sandra Day O’Connor to David Souter to Harry Blackmun to Stephen Breyer to John Roberts to Elena Kagan has — without a single exception — been confirmed. This is the well-settled meaning of “advice and consent.”
And that brings me to Merrick Garland. Based on his record of achievement throughout his illustrious career, and particularly during his nineteen years as a judge on the United States Court of Appeals, no serious person has any doubt about Judge Garland’s intellect, his character, his generosity of spirit, his respect for precedent or the moderate nature of his views. Although he leans in a liberal direction, he is never doctrinaire, never ideological and never disrespectful of competing positions.
He is, indeed, almost perfectly analogous to the John Roberts, I commended for confirmation a little more than a decade ago. Although there are liberals who are disappointed that President Obama did not nominate someone more in the spirit of a William Brennan or a Thurgood Marshall, Merrick Garland is an exceptional choice.
But Senate Republicans, led by the likes of Mitch McConnell and Charles Grassley, refuse even to consider his nomination. The explanation they offer — that the Senate should not consider a Supreme Court nomination made in the last year of a President’s term — is nothing short of ludicrous. Although such nominations do not come along very often, there is absolutely no tradition or practice that supports such an approach. To the contrary, over the course of the last century almost every such nomination has been confirmed without fuss.
McConnell and Grassley maintain that the “people” should be allowed to decide the makeup of the Supreme Court in the coming presidential election. But the plain and simple fact is that the People have already decided this issue when they elected — and then reelected — Barack Obama as President of the United States. Mitch McConnell’s fervent desire to the contrary, President Obama is the duly-elected President of the United States. It is his responsibility to nominate a Justice to fill the current vacancy, and it is the Senate’s responsibility to consider that nomination in a timely and responsible manner that is consistent with our well-established traditions.
Of course, the real reason for the McConnell-Grassley position has nothing at all to do with the fact that the nomination comes in the final year of President Obama’s term. It is inconceivable, for example, that they would take this position in the final year of, say, President Mitt Romney’s term of office. What we are dealing with here is rank hypocrisy.
The real reason for the intransigence of the Senate Republicans is that if Judge Garland were to succeed Justice Antonin Scalia on the Court, his appointment would move the Court in a more liberal direction. It would move the Court more or less back to the place it was at ten years ago, before the appointment of the very conservative Samuel Alito moved the Court appreciably to the right and enabled it either to eviscerate or to overrule many of the decisions on which the more moderate Justice O’Connor had previously leaned left.
It is perfectly understandable that Senate Republicans want the Supreme Court to mirror their views and do their bidding. But that is not a constitutionally legitimate reason for the Senate to refuse to confirm a well-qualified and reasonably moderate nominee. Indeed, it is noteworthy that of the sixteen Supreme Court justices who have been confirmed since 1967, eight of them substantially altered the ideological balance on the Court.
These eight pivotal appointments since 1967 were Warren Burger for Earl Warren, Lewis Powell for Hugo Black, Harry Blackmun for Abe Fortas, William Rehnquist for John Harlan, John Paul Stevens for William Douglas, David Souter for William Brennan, Clarence Thomas for Thurgood Marshall, and Samuel Alito for Sandra Day O’Connor. (Alito, rather than Roberts, succeeded O’Connor, because while Roberts’ confirmation was pending Chief Justice Rehnquist died and President Bush switched gears and nominated Roberts to be Chief Justice).
It is striking, by the way, that every one of the eight Justices whose confirmations had a substantial impact on the ideological makeup of the Supreme Court in almost half-a-century was nominated by a Republican president, and every one of them moved the Court in a more conservative direction. It is largely for that reason that the Court is more conservative today than at any time in almost a century.
Now, for the first time since 1967, a nominee put forward by a Democratic president might actually move the Court in an appreciably more liberal direction, and what happens - the Senate Republicans have a conniption! To make matters even worse, the nominee is only moderately liberal. The shift in the Court is due not to the judicial philosophy of Merrick Garland, but to the fact that he would replace one of the most rigidly conservative Justices in Supreme Court history.
McConnell, Grassley, and their cronies may not like the hand they have been dealt, but it is not their business to disregard well-established tradition. The plain and simple fact is that Merrick Garland is a well-qualified and reasonably moderate nominee. There is no principled or legitimate justification for refusing to consider — or to confirm — his nomination.
It is time for the Senate Republicans to back off and to act like responsible grownups who recognize that they have a solemn obligation to act according to the rule of law. If they don’t like that, then perhaps they should just resign their positions and let the nation get on with its business. If they move forward with their cynical and hypocritical plan, they will be guilty of a coup d’état of epic proportions.