The Land of Flickering Lights

by Michael Bennet

  By selecting Garland, President Obama signaled his willingness to work with Republicans to place a nonideologue on the court. In 2010, Senator Orrin Hatch, then the ranking member of the Senate Judiciary Committee, had described Garland as someone who would be a “consensus nominee” for the Supreme Court. In 1997, a Republican-majority Senate had confirmed Garland to the D.C. Circuit 76–23.12 By picking someone of Garland’s age—he was sixty-four—the president also signaled that he understood Republicans would object to a younger judge who might remain on the bench for half a century.

  The president asked the Senate to fulfill its constitutional duty and “give him a fair hearing, and then an up or down vote.” But only minutes later, Senator McConnell reaffirmed his blockade: “It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on a president and withhold its consent,” he said. Orrin Hatch duly retracted his 2010 endorsement: “I think highly of Judge Garland. But his nomination doesn’t in any way change current circumstances. I remain convinced that the best way for the Senate to do its job is to conduct the confirmation process after this toxic presidential election season is over.”

  Throughout 2016, McConnell simply refused to process the nomination. No Senate Judiciary Committee hearing. No public debate. No floor vote. Most Republicans refused even to a meet with Garland, as if such a courtesy were worse than sitting down with Kim Jong-un of North Korea (before doing so became fashionable).13 “It isn’t about the person. It’s about the process. It’s about the principle,” Chuck Grassley said after the Garland nomination. “I think we’ve laid down a principle that’s pretty sound … It should go over to a new president.”

  One Republican senator who objected to this lack of process learned the hard way who was now calling the shots in the Republican Party. Senator Jerry Moran, of Kansas, explained to a town hall gathering back home, as reported in a local newspaper: “I would rather have you complaining to me that I voted wrong on nominating somebody than I’m not doing my job. I can’t imagine the president has or will nominate somebody that meets my criteria, but I have my job to do. I think the process ought to go forward.” The Kochs’ Judicial Crisis Network soon weighed in. Carrie Severino, the network’s chief counsel and policy director and a former law clerk for Justice Clarence Thomas, described the efforts under way since Moran’s statement:

  We are in the process of putting the finishing touches on a robust, multifaceted TV, digital, and grass-roots campaign designed to remind Sen. Moran that he represents the people of Kansas and neither President Obama nor the Democratic Party. Obama is trying to deny voters in Kansas, and around the country, a voice in the direction of their Supreme Court and Sen. Moran should not play into his hands. He should stand with the Republican leadership and the American people.

  The next day, Good Friday, the Washington-based Traditional Values Coalition, which has been designated an antigay hate group by the Southern Poverty Law Center, observed of Senator Moran: “At least Judas Iscariot had the common courtesy to wait until after supper to betray his friends.”

  As right-wing fury spread across the country, Senator Moran patiently reiterated that he was opposed to the president’s nominee but that “he had a duty to ask tough questions and demand answers.” Such a “thorough investigation would expose Judge Garland’s record and judicial philosophy and disqualify him in the eyes of Kansans and Americans.”

  None of this appeased organizations that claimed to represent the base of the Republican Party, and the following week Senator Moran surrendered. His office explained that he had studied Judge Garland’s record “and didn’t need hearings to conclude that the nominee’s judicial philosophy, disregard for Second Amendment rights, and sympathy for federal government bureaucracy” made Garland “unacceptable.”

  Democratic senators believed McConnell’s refusal to hold a hearing stemmed from a worry that the American people might find Garland to be reasonable, experienced, and competent—a judge’s judge. “Why are they afraid to meet with him? Why are they afraid to hold hearings?” asked Harry Reid during a photo op with Garland during his first visit to Capitol Hill. “Are they afraid the American people will watch these hearings and demand they do something more than they are demanding now?”

  Buoyed by public opinion polls showing that more than two-thirds of voters believed Garland deserved a Senate Judiciary Committee hearing, Democrats were confident McConnell’s strategy would backfire and Senate Republicans would suffer in the coming elections. We remonstrated with McConnell, wielding the slogan “Do Your Job.” But McConnell knew he would suffer nothing politically. He would, in fact, galvanize the Republican base. As he would tell supporters at the annual Fancy Farm Picnic in Kentucky, “One of my proudest moments was when I looked Barack Obama in the eye and said, ‘Mr. President, you will not fill this Supreme Court vacancy.’” Intuiting that the American people would see the Garland episode as just another example of Washington dysfunction and just another pox on both parties, the majority leader instead swung for the fences. He would make the Supreme Court vacancy a seminal issue in the 2016 presidential campaign—a seat he would hold open and a prize for the taking if a Republican won.

  With Donald Trump emerging as the presumptive nominee, Republican Party officials had become nervous about their conservative religious base. Trump was twice divorced, had been credibly accused of sexual misconduct on multiple occasions, would be caught on the Access Hollywood tape making disgusting comments about women, and had no plausible record of supporting conservative Christian positions on issues such as abortion and homosexuality (rather the reverse). Republican Party chairman Reince Priebus suggested that the candidate could provide reassurance by releasing a list of his potential Supreme Court nominees—people who would find favor with the Federalist Society and the Heritage Foundation: “solid names that we can say, ‘OK, this what this is about.’ It’s about a conservative Supreme Court for generations. So you take all this sort of gamesmanship out and say, ‘What is this about?’ This [is] about the future of this country. This is not a game.”

  Trump’s campaign team wasted no time generating that list. A little over a week later, the campaign released the names of eleven judges, selected “based on constitutional principles, with input from highly respected conservatives and Republican Party leadership.” No candidate for president in history had produced a list of potential nominees for the Supreme Court, and it galvanized the Republican Party. On the day Merrick Garland became history’s longest-waiting Supreme Court nominee without a Senate confirmation vote, Trump delivered his acceptance speech at the Republican National Convention. There he pledged to replace Justice Scalia with a “person of similar views, principles, and judicial philosophy.”

  At a campaign rally one week later, Trump was more blunt. He knew he was despised by many in his own party, but he also knew that the prospect of filling the open seat would persuade many to hold their noses and cast a ballot in his favor: “If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway. You know why? Supreme Court judges. Sorry, sorry, sorry—you have no choice.”

  In the final stretch of the fall campaign, Trump doubled down by adding ten more names to his list, including Judge Neil Gorsuch and Senator Mike Lee. He stated that the list was “definitive” and that he would choose as a nominee only someone who was on it. Republicans coalesced around Trump’s proposed names, and conservatives, in particular, replaced their misgivings about the Republican candidate with their hopes for a conservative court.14

  Democrats, meanwhile, were anticipating a Clinton victory—as just about everyone was—and were already debating whether Hillary Clinton should replace Judge Garland with a younger, more liberal, nominee after her election. The head of one liberal advocacy group, the Progressive Change Campaign Committee, noted how grassroots energy had “plummeted” after Obama nominated Garland: he “was the most conser
vative possible Democratic nominee, and it makes no sense for that to be who Democrats offer the nation after winning a fresh mandate.” Clinton may have sensed this tension in her party. Her only mention of the Supreme Court in her acceptance speech was a glancing line about the need to appoint “Supreme Court justices who will get money out of politics and expand voting rights, not restrict them.”

  Throughout the fall, Clinton said that she would not be bound by President Obama’s nomination of Garland, although she would not object if the Senate approved him during the lame-duck session. Writing on election eve, the New Yorker’s Ryan Lizza explained the politics:

  There’s plenty of uncertainty about the outcome of the election tomorrow, but if Hillary Clinton wins the White House and the Democrats take back the Senate, … Clinton will also have a big decision to make. Should she press for Garland’s confirmation in the lame duck to avoid a confrontation over the Court in her first year? For the left, this would be a disappointment and would be taken as an early sign that Clinton’s progressivism is negotiable. It could also be interpreted as rewarding Republican obstructionism.

  Republicans, also considering the possibility of a President Clinton and a Democratic Senate, began floating the idea of leaving the vacancy open for four more years. On a campaign swing in Colorado—campaigning for my opponent—two weeks before the election, Ted Cruz suggested an indefinite GOP blockade by citing “long historical precedent for a Supreme Court with fewer justices.”15

  In the end, no one had to face any of these what-ifs. Shocking even his own campaign, Donald Trump won the presidency. An analysis by the Pew Research Center found that Trump had benefited from a 3 percent increase in support from evangelicals—a margin that by itself may have been enough to swing the election and one due in part to the prospect of preserving the Supreme Court vacancy for a conservative. According to CNN, exit polls showed that among the one-fifth of voters who said the Supreme Court was the most important issue in their decision, 56 percent voted for Trump.

  IV. Nothing to Lose?

  Eleven days after his inauguration, President Trump announced his choice for the Supreme Court. Neil Gorsuch, a Tenth Circuit judge, was fifty-one—young to take a lifetime seat. He was also among the most conservative and most qualified choices on Trump’s list. He was the mirror image of the candidate some of Clinton’s supporters had hoped she might select. And he was from Colorado.

  From the moment the nomination was announced, there was no question that Judge Gorsuch would become Justice Gorsuch. The only question was whether McConnell would invoke the nuclear option in order to confirm him. And that question turned, in part, on whether Democrats would decide to filibuster.

  Even before President Trump’s official announcement, the call for retribution had begun. Washington Post columnist Paul Waldman laid out the case that many other liberals made: “Should they [Democrats] filibuster Donald Trump’s first Supreme Court nomination? Yes they should. They should do it to make a statement about the unconscionable way in which Republicans held this seat open, and about their willingness to be strong in the face of Republican bullying. And they need to realize that in taking this step, they have absolutely nothing to lose.”

  Merrick Garland’s mistreatment meant we lived in a land where an eye for an eye was the law. The seat had been Barack Obama’s to fill, and Republicans had taken it from him. Ever since Democrats invoked the nuclear option in 2013, there was a sense that the Supreme Court would inevitably be next. So why not have that fight now, when Democratic voters demanded “resistance” and were engaged as never before, to demonstrate that Democrats in Congress were willing to take a stand? “This is the time to pull the trigger—when they have a real justification for it,” Waldman wrote. “Their voters are watching.”

  In the early days of the Trump administration, the question whether to filibuster his Supreme Court nominee quickly became the defining test of whether Democrats had the will to resist. Having failed to force the Republicans to “do their job” and consider Merrick Garland, Democrats began pledging to use every tool to avenge Garland and hold open the “stolen seat.” I shared that frustration and the desire to hold Republicans accountable for what they had done. But I questioned whether filibustering Judge Gorsuch was the right thing to do and strongly disagreed that we had nothing to lose.

  Although extremely conservative, Gorsuch was indisputably qualified and had survived the hearings unscathed. If we obstructed them by filibustering, Republicans would successfully invoke the nuclear option without any political damage to themselves. Senator Lindsey Graham made the point plainly: “This man is as mainstream a judge as you’ll ever find on the conservative side … If they filibuster this man, we’ll have no other option but to change the rules because if we don’t that means President Trump can never make a selection to the Supreme Court and I will not allow that to happen.”

  Moreover, Gorsuch would not change the balance of the court. Crudely, he represented a younger Scalia replacing an older Scalia and was therefore unlikely to produce an appreciable difference in the court’s decisions. I was most worried about whether President Trump might get the chance to fill another vacancy and, if so, who the nominee might be. The next one would likely replace Justice Kennedy or Justice Ginsburg, changing the balance of the court and threatening 5–4 votes overturning reproductive rights, affirmative action, same-sex marriage, and the Affordable Care Act.

  If we had any choice about when to provoke a battle over the nuclear option, it seemed to me that the time to do it was when a change in the majority would threaten Roe v. Wade. My view in the moment was this: With such an important ruling at stake and with President Trump perhaps weighed down by lower approval ratings, we might at least have a chance to mobilize Americans (including even some Senate Republicans) to preserve the sixty-vote threshold. If we filibustered Gorsuch and, as was inevitable, failed, we would have no tools to withstand the next nominee. Donald Trump could nominate anyone he wanted, and Democrats would have no mechanism to stop it.

  In the end, I also believed that the American people, on whose behalf, ostensibly, we were having these battles, had a lot to lose if the Senate turned the Supreme Court into an institution populated by judges placed there by purely partisan votes. For such a significant, lifetime appointment, every nominee should be required to merit bipartisan support. If not, then potential nominees would have no incentive to demonstrate moderation and fairness. They would audition for the part by adopting messaging crafted by the most extreme organizations on the left or right. Democratic politicians would insist that Democratic presidents appoint the most liberal candidates in the land; Republicans would insist that Republican presidents appoint conservatives. To me this created enormous risk that the Senate would infect the (lifetime-appointed) Supreme Court with our (hopefully temporary) rank partisanship.

  On April 4, 2017, a dark cloud of inevitability hung over Washington. Using the same script Harry Reid had used in 2013, Mitch McConnell appealed the chair’s ruling that “the precedent of November 21, 2013, did not apply to nominations to the Supreme Court; those nominations are considered under plain language of Rule Twenty-Two.” Once again, the Senate voted along party lines, 52–48, to overrule the chair. “The decision of the Chair does not stand as the judgment of the Senate,” Orrin Hatch, the presiding officer, said after the vote. Although the text of the rule still required a sixty-vote majority for the Supreme Court, a majority of the Senate established a precedent requiring only fifty-plus-one votes. Once again, words had lost their meaning, although at least now they were meaningless consistently.

  The nuclear option once invoked, the Senate proceeded to confirm Neil Gorsuch by a vote of 54–45. I was among those who voted no, recognizing that we had entered into a new era of partisan decision-making. That Friday afternoon, after the final vote, I walked alone back to my office in the Russell Building. Directly across the Capital Plaza, I could see the Supreme Court about a quarter of a mile away. In all
that sculptured and landscaped expanse, there was not a single American with a single sign who had been mobilized or inspired to celebrate or oppose what we had done.

  I took the absence of citizens in this most significant public square to be an indication of how little they thought they could affect outcomes in Washington. This did not come as a complete surprise. Republican ad makers estimated that conservative groups outspent liberal groups on television ads by nearly 20 to 1. The anything-goes election-spending regime exacerbated by the decision of the Supreme Court in Citizens United was once more in evidence. The Judicial Crisis Network (JCN) pledged $10 million in pro-Gorsuch ads; in turn, JCN was supported by another nonprofit, the Wellspring Group, whose war chest, according to the Center for Responsive Politics, came largely “from an $8.5 million contribution from a single anonymous donor.” Consistent with the effect of the court’s jurisprudence, that anonymous person was perfectly free to remain anonymous. We would never know who the donor was or what business, if any, he or she had before the court.

  That same day, anticipating the next logical step in the descent of the Senate away from a framework that encouraged deliberation and even bipartisanship, I, along with sixty of my colleagues, signed a letter to Senators McConnell and Schumer expressing our support for preserving the filibuster for purposes of legislation. Even with this effort, most senators would readily acknowledge the tenuous condition of the legislative filibuster as a result of the decisions already made.

  With complete control over what came up for consideration on the Senate floor, McConnell now set aside legislative priorities to focus solely on judicial confirmations. “Believe me, the next time the political winds shift, and the other guys are in the ascendancy” Democrats could roll back the Republican policy victories, he said. “But they won’t change these judges for a generation.”