The Land of Flickering Lights

by Michael Bennet

  It should not be surprising that these failures have eroded support for the idea of democracy itself, especially among younger Americans; barely a quarter of young Americans say it is “essential” to live in a democracy, and almost half of all Americans say they “never had” or “have lost” faith in US democracy. Lincoln told us that if the American government failed to meet citizens’ basic expectations, we would lose “the strongest bulwark of any Government … the attachment of the people.”

  Washington’s political dysfunction doesn’t stay in Washington; it infects the rest of America. America’s economic dysfunction doesn’t stay in the rest of America; it paralyzes Washington. Nothing less than America’s exercise in self-government is at stake.

  To change course, we must embrace the imagination of our founders and those who improved upon their work. I have some ideas about how we might do that. But first it is useful to consider how Washington wasted the American people’s time over the last decade—and served them ill in the process. Understanding this, we might hope to construct politics that will use the coming decade more productively than we used the past one. This new politics will require the American people and their elected leaders to hold higher expectations of one another as citizens. It will require us to build new constituencies in order to start undoing the damage done over the course of two generations—before two generations become three and four. Even better, we might aspire to enhance the rights, opportunities, and freedoms of our children and grandchildren.

  1 The original founders foresaw that keeping factionalism under control would be a central challenge. In “Federalist No. 10,” James Madison defined “faction” as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Sound familiar?

  2 The only time my birthplace has been a political asset was when I traveled to India with my close friend in the Senate, Mark Warner, from Virginia. In every meeting, when introducing our delegation, he would point out that “in the history of our republic, out of more than twenty-three hundred senators who have served, only one has been born in New Delhi.” A very reliable applause line in New Delhi, Calcutta, and Hyderabad. Less so in Colorado.

  3 Edward and his wife, whose name is not known, died during the first winter in Plymouth, but a son, who followed them from England later, survived. The descendants apparently include Georgia O’Keeffe, Larry Bird, and Amelia Earhart. I am possible proof that their accomplishments are not genetic in origin. My jump shot is even worse than my painting.

  4 Dick himself also has not changed. When Sherrod Brown, one of my favorite people in the Senate, was thinking once about running for governor of Ohio, Dick said to him: “See that chair over there? You have to be willing to eat that chair if you want to become governor of Ohio.” As every Election Day approaches, Dick calls with a list of chairs I know I should be eating but would rather not. And I eat them.

  5 One of my most memorable moments in law school was beating Daniel Halberstam at speed chess. It never happened again.

  6 Among other insults, Limbaugh, while drawing pay from national consumer brands sponsoring his show, repeatedly played a racist song called “Barack the Magic Negro.” Senator Obama received Secret Service protection nine months before Democrats cast their first votes, earlier than any previous presidential candidate.

  7 One of the reasons school closing meetings are so tough is that families are legitimately aggrieved. They face the disruption of changing schools almost always because the school district failed to deal with resource or academic issues forthrightly in the past.

  POWER PLAY

  Ignoring the Constitution,

  ignoring a Supreme Court nominee,

  and eviscerating the Senate as an institution.

  I. “Less Than Zero”

  The news came on Saturday, February 13, 2016, while I was attending a Jefferson-Jackson Day dinner in Colorado. It arrived in the form of a crawl on CNN: Supreme Court Justice Antonin Scalia had died suddenly at a hunting camp in Texas. At seventy-nine, Scalia was the third-oldest member of the Supreme Court. His death left the court split between four justices appointed by Democratic presidents and four appointed by Republican presidents. He died in a presidential election year, but with fully 342 days to go before the end of Barack Obama’s second term.

  Throughout our history, there has been little controversy about what should happen after a Supreme Court justice dies. Article II, Section 2, Clause 2 of the United States Constitution says that the president “shall nominate, and by and with the Advice and Consent of the Senate shall appoint … Judges of the Supreme Court.” In practice, this has meant that when a vacancy arises the president nominates a replacement and the Senate approves or rejects the nominee by voting on his or her nomination.1

  Before President Obama’s last year in office, no Senate in history had ever refused to consider an elected president’s nominee merely because the vacancy arose in an election year. Indeed, the Senate has confirmed seventeen Supreme Court nominees in election years since the nation’s founding. It has rejected two. In only six instances in our history (election year or not) did the Senate deliberately ignore a president’s nominee. In each case there were questions about the sitting president’s legitimacy. In three of the cases, vice presidents had replaced presidents who died in office. The other three cases involved nominations made during the lame-duck session after a presidential election.2

  It’s fair to say that I disagreed with Antonin Scalia about almost everything. I also knew him to be a distinguished jurist with a sharp legal mind and a powerfully persuasive pen. He was a devout Catholic and a devoted family man. He had a winning sense of humor and had forged an improbably close friendship with Justice Ruth Bader Ginsburg, his polar opposite in so many ways. You could stand in opposition to Scalia on points of policy and principle while agreeing that he was eminently qualified to serve on the Supreme Court and embodied extraordinary qualities as a human being and as an American. His unexpected death afflicted family and friends with a grievous loss. Most Americans, whatever their politics, likely received the news with shock and sadness.

  But not all of them. A mere eleven minutes after the first press reports of Justice Scalia’s death—and nearly forty minutes before official confirmation by Chief Justice John Roberts—Utah senator Mike Lee’s communications director tweeted, “What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?”

  An hour after Roberts made his announcement, Senate Majority Leader Mitch McConnell, of Kentucky, declared: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” Soon after, the chairman of the Senate Judiciary Committee, Republican senator Charles Grassley, of Iowa, put out a statement: “The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year. Given the huge divide in the country, and the fact that this President, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

  Grassley failed to note that there had been no vacancy during an election year for eighty years. The last one had arisen eighty-four years earlier, when President Herbert Hoover nominated Benjamin Cardozo and the Senate confirmed him nine days later. It is worth noting that Grassley, a Republican, spoke very differently—and in this case accurately—when it came to judges nominated in 2008, at the end of President George W. Bush’s term of office: “The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a presi
dent’s term.”

  Disregarding 230 years of custom and practice, members of the Senate, many of whom claimed to be—as Justice Scalia said he was—“constitutional originalists” or “textualists,” began willfully ignoring the text of the Constitution in favor of something they falsely called “standard practice.” McConnell and Grassley summarized their view of the constitutional requirements in the Washington Post: “It is today the American people, rather than a lame-duck president whose priorities and policies they just rejected in the most-recent national election, who should be afforded the opportunity to replace Justice Scalia.” The reference here is not to anything in the nation’s founding documents or to Obama’s popularity and reelection but to the fact that the Republicans had picked up a few seats and taken control of the Senate.

  McConnell and Grassley’s argument led me to take the Senate floor with the actual words of the Constitution (in boldface) interwoven with their bogus ratonale (in plain text). It looked something like this:

  he shall nominate, It is today the American people, rather than a lame-duck president whose priorities and by and with policies they just rejected in the advice and consent of the Senate, shall appoint most-recent national election, who should be afforded the opportunity to replace judges of the Supreme Court Justice Scalia.

  In the McConnell-Grassley version of the constitutional charge, only two words remained from the actual Constitution, a conjunction (“and”) and a definite article (“the”).3

  Contrary to the impression McConnell and Grassley were attempting to create, the Senate, otherwise notorious for its glacial pace, has acted expeditiously when considering Supreme Court justices. Over the past forty years, it has come to a decision, on average, seventy days after the president’s nomination.

  There are good reasons not to delay. First is the unique nature of the responsibility. The framers of the Constitution lodged the obligation to advise and consent with the Senate. No one else, including the House of Representatives, can exercise it. Second, and crucial, is the essential importance of the Supreme Court’s composition. No less an authority than Justice Scalia himself explained this well. Asked to recuse himself from a case involving Vice President Cheney on grounds of an apparent conflict of interest, Justice Scalia rejected the suggestion that he should “resolve any doubts in favor of recusal.” He observed that such a standard might be appropriate if he were on a circuit court, where “my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case.” Scalia cited the Supreme Court’s own recusal policy to explain that “even one unnecessary recusal impairs the functioning of the Court.”

  It is easy to see why we would want a functional court, particularly in a presidential election year. Imagine, for example, a future court with an even number of justices confronted by facts similar to those of Bush v. Gore—the decision that gave the disputed 2000 election to George W. Bush—but with only eight justices on the bench. How long would the nation have to endure a constitutional crisis?

  Mitch McConnell didn’t care about any of this as he set out to establish a brand-new precedent. Just five days after Justice Scalia’s death, the Judicial Crisis Network, financed by the Koch brothers, launched a multimillion-dollar “Let the People Decide” advertising campaign to keep the seat vacant. A new interpretation of the president’s and Senate’s constitutional responsibilities began to be pushed across the land. As events played out, one casualty would be norms and traditions that underlie the very essence of the Senate as an institution.

  II. Pocketing a Treasure

  Although the Republicans’ theory of the case was novel, the fight over the Scalia vacancy was hardly the first partisan battle over judicial nominations. Earlier rounds, described by the Washington Post’s Helen Dewar as “political blood feuds, in which each side seeks to avenge the earlier assaults by the other side,” had begun under President Ronald Reagan, with the defeat by the Democrats of Robert Bork’s nomination to the Supreme Court. The battles escalated under President Bill Clinton when Republicans blocked votes on a record number of district court nominees. When George W. Bush won the presidency, Senate Democrats took it to another level by filibustering ten circuit court nominees during his first term.

  After Bush won reelection and Republicans increased their clout in the Senate, Majority Leader Bill Frist, of Tennessee, vowed to retaliate. At a November 2004 meeting of the Federalist Society—an influential organization of conservative lawyers and jurists—he vowed: “One way or another, the filibuster of judicial nominees must end. This filibuster is nothing less than a formula for tyranny by the minority. The Senate cannot allow the filibuster of circuit court nominees to continue. Nor can we allow the filibuster to extend to potential Supreme Court nominees.”

  Frist, in 2005, became the first leader to threaten to use the “nuclear option.” Making a change in the rules of the Senate had long required a two-thirds vote—a traditional means of making sure the rules had bipartisan support. Using the nuclear option meant allowing a rules change by means of a majority vote instead—making rules changes a partisan affair. Beginning in 1917, Senate rules required a two-thirds majority to affirm a decision to end debate on a judicial nomination and move to a final vote. In 1975, the Senate lowered the requirement to three-fifths, or sixty votes. It is uncommon for one party to hold sixty seats in the Senate, so nominations advanced only when there was support from at least a few members of the minority party. This rule had a moderating effect: judges were selected with an eye to making them somewhat acceptable to the other side of the aisle, and as a consequence all but a few nominations were confirmed by large bipartisan majority votes. Scrapping the sixty-vote threshold would make confirmations easier—and at the same time make them vastly more partisan. The use of the so-called nuclear option to change the rules would threaten the balance of power in the Senate—indeed, would threaten the nature of the Senate—by allowing the majority to overcome the rights of the minority at any time it wished. That’s the way it is in the House of Representatives, a more rambunctious and fickle body. The Senate is supposed to act with inclusive deliberation and to take the long view.

  A group of senators—seven Democrats and seven Republicans—took it upon themselves to defuse the bomb. What started as hushed expressions of concern voiced between committee hearings turned into an urgent conversation on how to preserve the sixty-vote threshold. The Gang of Fourteen, as the group came to be known, reached a memorandum of understanding that each of its signatories would oppose the nuclear option and filibuster judicial nominees only in “extraordinary circumstances.”4 The 2005 agreement was technically unenforceable. The Gang relied on mutual trust; its members, as CQ Weekly noted, “did not want to serve in a chamber that essentially could look like a clone of the House.” John McCain, a member of the Gang, explained, “This happened because there was a group of us that thought the institution and the very fundamentals of the institution were at stake.”

  The agreement represented a rare moment of bipartisanship in a fractured Senate. Outside the chamber, there was less enthusiasm for the deal. Many liberals expressed disappointment with an agreement that moved forward Bush’s “extremist nominees.” Many conservatives, wanting to scrap the filibuster altogether, assailed the agreement as “an outrage” and “a complete bailout and betrayal” by the Gang’s Republicans and predicted that conservative voters would punish the Republican Party.5

  As it happened, in the following year, 2006, Democrats won control of the Senate, acquiring a slim 51–49 majority. After the Republican loss, Gang member Lindsey Graham, of South Carolina, who had himself won reelection, could not resist noting that the Democratic landslide proved the value of the Gang’s work. He told a reporter, “If anything’s certain now, it’s that changi
ng the rules would have been shortsighted. Conservatives having a say in judicial nominations would have been forever lost.” During the final two years of Bush’s term, the agreement held. A Senate controlled by Democrats confirmed sixty-eight judges nominated by President Bush.

  All of this changed with the 2008 landslide election of Barack Obama and the emergence of Democratic majorities in both the House and the Senate. Obama hoped to move beyond the bitterness and gridlock of the past, but the leadership on the Hill had already laid plans to sabotage such efforts. Interviewed for a Frontline documentary, the journalist Robert Draper described a decision made on the night of Obama’s inauguration at a dinner hosted by former House Speaker Newt Gingrich with top House Republicans and conservative power brokers: “So they decided that they needed to begin to fight Obama on everything. This meant unyielding opposition to every one of the Obama administration’s legislative initiatives.” As Mitch McConnell would later put it, “The single most important thing we want to achieve is for President Obama to be a one-term president.” The idea was to oppose Obama even when one agreed with him. Speaking later of the president’s efforts to expand health care coverage for Americans, House Speaker John Boehner said, “We’re going to do everything—and I mean everything we can do—to kill it, stop it, slow it down, whatever we can.” With respect to judicial appointments, the Republicans adopted new obstructionist tactics—for instance, using certain senatorial prerogatives to place holds on particular nominees. They hoped to win the next election in 2012 and wanted to allow a Republican president to fill the judicial vacancies. As a result of these tactics, more vacancies existed at the end of President Obama’s first term than at the beginning.