The Land of Flickering Lights

by Michael Bennet

  Through the two years of the 115th Congress, McConnell pursued a relentless strategy to fill the many judicial vacancies President Trump had inherited thanks to Republican delaying tactics throughout the Obama presidency. By the end of Trump’s first two years, the Senate had filled eighty-six of them, including two Supreme Court vacancies and thirty-one Circuit Court vacancies. By way of comparison, this was almost double the number of Circuit Court vacancies filled in the first two years of the Obama administration and just nine fewer than Obama appointed in his last six years. Donald Trump became the first president in history to take full advantage of the opportunity to fill every open seat by a simple majority vote.16

  At a Rose Garden press conference in October 2017, Trump and McConnell stood side by side to celebrate their judicial success. “The judge story is an untold story; nobody wants to talk about it,” Trump said. “But when you think about it, Mitch and I were saying, that has consequences forty years out, depending on the age of the judge—but forty years out.” For his part, Majority Leader McConnell would later say, “The most important decision I’ve made in my political career was the decision not to do something; it was the decision not to fill the Supreme Court vacancy created by the death of Justice Scalia.”

  V. Winner Take All

  The founders knew that “history does not repeat itself but it often rhymes.” The remark is reputedly Mark Twain’s, but it has a long ancestry. For this reason, the founders mined the politics of ancient Greece and Rome for lessons about the promise and the perils of self-government. They placed those lessons at the heart of the American political experiment. Since then, our system of government has endured because citizens and elected officials chose to uphold rules, written and unwritten, that help us resolve our differences without unleashing a cycle of partisan fury that could endanger the republic.

  The founders believed that while civility, compromise, and cooperation are not required by law, laws cannot pass without them. They recognized that while the majority may have the power to rule on its own, it should not trample over the minority. They knew that at some point partisanship must give way to patriotism.

  Through our history, including moments far more difficult than our own, these principles have served as political guardrails, keeping us from veering off course into political dysfunction. But in recent years, we have begun tearing these guardrails down. And in doing so, we risk incurring the revenge of history by ignoring its lessons.

  There is a tendency these days—and, in particular, in the Senate—to think our problems are unique and that the consequences of our actions are fleeting. Both thoughts are wrong.

  Millennia ago—the tale is told by Thucydides—civil war consumed the ancient city of Corcyra. The majority party wished to remain in alliance with Athens, while the minority sought an alliance with Corinth. According to Thucydides, both sides, driven by their “lust for power arising from greed and ambition,” spared “no means in their struggles for ascendancy.” He goes on: “In their acts of vengeance they went to even greater lengths, not stopping at what justice or the good of the state demanded, but making the party caprice of the moment their only standard.” As the civil war intensified, both sides struggled in vain to end it, because “there was neither promise to be depended upon, nor oath that could command respect; but all parties rather dwelling in their calculation upon the hopelessness of a permanent state of things, were more intent upon self-defense than capable of confidence.” In the end, the Corcyrean civil war led to the dissolution of the city:

  The Corcyreans butchered those fellow-citizens they regarded as enemies, charging them with putting down the democracy, but some also died because of personal hatred … Occasions for bringing in outsiders were readily found by those wishing to make any change in government … With public life confused to the critical point, human nature, always ready to act unjustly even in violation of laws, overthrew the laws themselves and gladly showed itself powerless over passion but stronger than justice and hostile to any kind of superiority.

  The founders read Thucydides.17 They knew that once factions sever the bonds of trust embodied in laws, norms, and traditions; once every disagreement becomes irreconcilable and we pursue the good of our party with complete disregard for the good of our country; and when we treat politics as a tribal war, distorting the obligations of elected officials and leaders, we lose the ability to do anything worthy of our roles. Indeed, we lose the ability to reason and even converse. Consider the similarity of the content of our social media feeds and cable television repartee to political attitudes during the Peloponnesian War, as described by Thucydides: “Reckless audacity came to be considered the courage of a loyal ally; prudent hesitation, specious cowardice; moderation was held to be a cloak for unmanliness; ability to see all sides of a question, inaptness to act on any.” Once we consider our fellow citizens to be enemies, we invite the endless cycles of blame, escalation, and retaliation that can destroy republican government. This mentality has damaged our ability to do anything of consequence, including tackling our debt or fixing our broken and cruel immigration system.

  In the case of Supreme Court nominations, the two parties each did their part to tear up the incentives to reach bipartisan agreements. We are at real risk that lifetime appointments to the highest court, which touches every aspect of American life, will become just another partisan exercise. This episode reveals how hard it is for both sides to see beyond the partisan tactics of the moment. It shows that some lawmakers will never lack an excuse to break with custom or change the rules to their benefit. They may even argue, as some recently have done, that the damage is not so bad, that everything can continue as normal.

  Consider the cost of the judicial nuclear fallout. Throughout the Gorsuch filibuster debate, McConnell justified the rules change by saying that he was “restoring the practice and custom of the Senate.” By this, he meant the body was returning to an era when senators did not filibuster judicial nominees. McConnell’s claim ignores an important part of the story, namely that for nearly all of our history, qualified judicial nominees, including Supreme Court nominees, routinely received the votes of a large, bipartisan majority; after 1970, it was not uncommon to see nominees supported by more than ninety votes.18 In other words, though the filibuster was available to them, senators saw no need to resort to it, bound as they were by deference to a president’s choices, and qualified and mainstream as those choices generally were. For the foreseeable future, and perhaps forever, confirmation votes will now break on party lines, with the burden of confirmation resting entirely on the majority and with the minority relieved of any responsibility to advise and consent with respect to judicial nominees or any others. Time will tell what effect partisan confirmations will have on the American people’s confidence in the judiciary and even in the rule of law, but it is unlikely to be good.

  Just ten days before Justice Scalia’s death, Chief Justice Roberts foreshadowed the confirmation fight ahead. He noted that the judicial confirmation process “is not functioning very well” and “is being used for something other than ensuring the qualifications of the nominees.” Pointedly, he observed that Supreme Court justices “don’t work as Democrats or Republicans … and I think it’s a very unfortunate impression the public might get from the confirmation process.” In our era, we have decided that this is the Senate’s new custom and practice. Now and for the foreseeable future, judges will be chosen and approved primarily on the basis of their partisan credentials. The views of a president who appoints a judge will be more significant than the judge’s judicial record, and every judgment will be seen as made by, say, a “Trump-appointed judge” or an “Obama-appointed judge.”

  Two years into the Trump administration, we have a better sense of what it meant to “go nuclear” on judges. The looming sense of a foregone conclusion lingered through the end of the 116th Congress. The Senate’s approval of Brett Kavanaugh as a Supreme Court justice followed on the heels of a Punch and
Judy version of the advise-and-consent process. The fight was set up by Beltway pros in advance. Even before Kavanaugh was nominated, Demand Justice, a progressive advocacy group, began collecting millions of dollars to turn up the partisan volume; meanwhile, the right-wing Judicial Crisis Network, which was still in business after the Merrick Garland fight, aired an attack ad using Senators Schumer, Feinstein, Warren, and Booker as convenient foils to generate opposition from its own reactionary base. One organization played Tybalt to the other’s Mercutio, each spoiling for a fight someone else would have to settle.

  This bellicose posturing might have played well on the coasts, but it did not build support for Democratic candidates in Indiana, Missouri, Montana, or North Dakota, states Democrats needed to hang on to if we were to take back the Senate. What it did instead was turn the incumbents into targets of their own party’s progressive wing. But even if this rhetoric sounded tough on cable news, we lacked one thing McConnell had when he ran his campaign against Garland: the votes to win.

  Not surprisingly, Democrats began to question whether their support of the nuclear option and of the filibuster of Justice Gorsuch was the right thing to do. Senator Chris Coons, who had expressed his misgivings in 2013 and again after President Trump’s election and again in 2017, voiced them once more. Senator Amy Klobuchar expressed her doubts too, saying on Meet the Press: “I don’t think we should’ve made that change, when we look back at it. But it happened because we were so frustrated, because President Obama wasn’t able to get his nominees.” Speaking in 2017 of the decision to use the nuclear option in 2013, Senator Schumer said, “I wish it hadn’t happened.”

  By the time Christine Blasey Ford arrived to testify about Judge Kavanaugh’s alleged sexual misconduct, the Senate Judiciary Committee was the worst possible forum on the planet to ascertain the background behind her allegations. As the confirmation hearings dragged on, the nominee diminished himself in full public view. Kavanaugh replied to the allegations against him by uncorking a mix of indignation, self-pity, and even partisan rage. He went so far as to wonder whether the inquiry into his record was “revenge on behalf of the Clintons.” Lindsey Graham came to Judge Kavanaugh’s defense, blasting committee Democrats for turning the hearings into an unethical sham. His charges went unanswered.

  When the hearings came to a close, whatever civic authority remained with the Senate Judiciary Committee was in tatters. Judge Kavanaugh was a nominee who under other circumstances—circumstances in which a nominee still required sixty votes—might have been withdrawn by reason of his temperament or his personal record. In this new world, his supporters came ready to win any fight. He was voted onto the Supreme Court of the United States by a mere two votes, the smallest margin for a nominee to the court since 1881.

  All the while, Mitch McConnell pressed relentlessly to fill vacancies on the lower courts. These appointments don’t rivet the country’s attention the way the Kavanaugh hearings did; Majority Leader McConnell has made sure of that. He has used his post-nuclear leverage to cram as many Trump nominees through as the calendar permitted. And, no longer requiring sixty votes, the Senate has managed to seat a roster full of judges who otherwise wouldn’t make the B-team cut.

  The Senate confirmed Texas Supreme Court justice Don Willett, President Trump’s nominee for the Fifth Circuit, 50–47. His record included writing a memo opposing a gubernatorial proclamation honoring the Texas Federation of Business and Professional Women. His reason? Their “talk of ‘glass ceilings,’ pay equity … the need to place kids in the care of rented strangers, sexual discrimination/harassment, and the need generally for better ‘working conditions’ for women (read: more government).”

  The Senate confirmed the Kentucky lawyer John K. Bush, President Trump’s nominee for the Sixth Circuit, 51–47 despite a past that included pseudonymously writing blog posts peddling conspiracies about Barack Obama and comparing abortion to slavery.

  The Senate confirmed Wisconsin attorney Michael B. Brennan, President Trump’s nominee for the Seventh Circuit, 49–46, despite Brennan’s record of suggesting publicly that judges can ignore judicial precedents they deem “incorrect” and justifying denial of habeas corpus to enemy combatants who were once US citizens with the brutal ancient dictum, “In time of war, the laws are silent.”

  The Senate confirmed Nebraska attorney L. Steven Grasz, President Trump’s Eighth Circuit nominee, 50–48, in spite of the fact that the American Bar Association (ABA) gave him a unanimous rating of “not qualified.” The group rates judicial nominees based on their legal writings, professional reputation, and judicial temperament. It was the first time the Senate confirmed a nominee rated “not qualified.”19

  And as if one judge deemed unqualified by the ABA wasn’t enough, the Senate also confirmed United States magistrate judge Charles Goodwin, President Trump’s nominee for the US District Court in Western Oklahoma, by a vote of 52–42. The ABA questioned Goodwin’s work ethic as judge magistrate, noting that his frequent absences until mid-afternoon were not compatible with the workload of a federal district court judge. Then, in December 2018, the Senate confirmed a third judge deemed “not qualified”—Jonathan Kobes, who joined Grasz on the Eighth Circuit.

  And what will happen in the future when vacancies arise on the Supreme Court but the party controlling the Senate majority is different from the president’s party? What incentive is there for the majority to approve the president’s nominee, especially if they can use the vacancy as a winning campaign issue? The probable result will be that no future Senate will confirm a president’s Supreme Court nominee unless it is controlled by the president’s political party. This can only result in a more polarized court. Which in turn will result in the American people’s losing faith in the judgments rendered by our judicial system.

  Our founders knew their history. But they could not guarantee that we would heed its lessons. They knew that unrestrained partisanship poses at least as great a threat to freedom as the size and power of government. They warned us to pay attention to that lesson. They built institutions to check the worst impulses of faction, to help us navigate profoundly consequential decisions—like confirmations for the Supreme Court—without tearing each other apart. But the founders also placed their faith in the willingness of elected officials to resist the passions of the moment and rise to defend our institutions and our traditions—especially in hard times. And they placed faith in the willingness of the public to compel elected leaders to do so. Today, with each escalating crisis, Washington’s political leaders instead reinforce the fear that our present dysfunction is, as Thucydides said, “a permanent state of things”—and one more reason to write off the American experiment as a losing cause.

  1 According to Robin Bradley Kar and Jason Mazzone, writing in the NYU Law Review, since the founding of the country there have been 103 instances where “an elected President has faced an actual vacancy on the Supreme Court and began an appointment process prior to the election of a successor. In all 103 cases, the President was able to both nominate and appoint a replacement Justice, by and with the advice and consent of the Senate. This is true even of all eight such cases where the nomination process began during an election year.”

  2 Presidents Tyler, Fillmore, and Johnson assumed office following the death of their predecessors (Harrison, Taylor, and Lincoln respectively). Tyler and Fillmore each faced two Supreme Court vacancies and contemporaneous debate over their legitimacy as president. Nevertheless, the Senate allowed each to fill one of the two vacancies. Johnson’s attempt to fill a vacancy was delayed as the Senate considered legislation that reorganized the court and ultimately eliminated the seat Johnson attempted to fill. Those instances occurred before the passage of the Twenty-Fifth Amendment, in 1967, clarifying the powers of a vice president who assumes the highest office.

  3 Moreover—and this is not a minor point—for all the cavalier use of the term “lame duck” by the Republicans, President Obama was not a lame-duck presiden
t. He would be a lame duck only in the period between the election, still nine months in the future, and the inauguration of a successor. The use of the term was an attempt to cast doubt on his constitutional legitimacy, something and the birther movement (later abetted by Donald Trump) had been doing since before Obama won election in 2008.

  4 The “Gang of …” formulation, which has been used on the Hill in other contexts besides this one, has an improbable origin: it comes from the term “Gang of Four,” which referred to powerful Chinese Communists during the Cultural Revolution who were later charged with treason. The Gang of Fourteen consisted of Robert Byrd (D-WV), Lincoln Chafee (R-RI), Susan Collins (R-ME), Mike DeWine (R-OH), Lindsey Graham (R-SC), Daniel Inouye (D-HI), Mary Landrieu (D-LA), Joe Lieberman (D-CT), John McCain (R-AZ), Ben Nelson (D-NE).], Mark Pryor (D-AR), Ken Salazar (D-CO), Olympia Snowe (R-ME), and John Warner (R-VA).

  5 John McCain, quoted in the New York Times, provided an astute analysis of the outrage among activist political groups: “Think of all the money they are going to lose.”

  6 An example: “Even if the President is content to appoint moderate judges, it remains a mystery why the Administration is so far behind in its nomination of judges,” Geoffrey Stone, who worked with Obama as dean of the University of Chicago Law School, told the American Prospect. “There is no excuse for the persistent failure to fill vacancies.”

  7 Every president since Harry Truman appointed at least one judge to the D.C. Circuit in his first term. That streak broke under Obama, when Republicans blocked his first nominee, Caitlin Halligan, for two and a half years, until the White House eventually withdrew her nomination. Obama’s second nominee, Sri Srinivasan, who had worked in the solicitor general’s office under both Bush and Obama, was originally nominated in June 2012 and then renominated in January 2013, ultimately waiting eleven months before unanimous confirmation.