Given the rancor and turmoil inside the GOP these days, even a bitter, partisan, hammer-and-tongs battle to the death over a Supreme Court justice seems almost quaint by comparison.
The Republican-controlled Senate, which is empowered by the Constitution to offer both advice and consent to the president’s judicial nominees, has offered the following advice: Not now and not you. Antonin Scalia’s death left a court vacancy larger than a mere one-ninth of the voters on the bench. Replacing Scalia with a reliably liberal justice would upend the court’s ideological balance, to an unacceptable degree for the GOP.
Now it should be said that this is a wholly political decision – and that’s fine. There’s nothing in the Constitution that says the Supreme Court must be evenly balanced between conservatives and liberals. It would have the same constitutional authority if it were composed of nine left-wingers or nine right-wingers. It would have the same constitutional authority if the court only had one justice.
All the Constitution says is that there has to be a Supreme Court. (Even the existence of lower federal courts is entirely optional). There’s nothing holy, never mind constitutionally sacrosanct about the number nine. Congress could decide tomorrow to make the Supreme Court a body of 72 people picked randomly from the phonebook (so long as the president was the one doing the random picking and the Congress approved them).
When the president, a former teacher of constitutional law, says, “the Constitution is pretty clear” about the need for hearings on his pick, he’s not telling the truth. He’s playing politics. The same goes for all the Republican senators who say the Constitution is clear that they don’t have to hold hearings if they don’t want to. The issue isn’t whether the Constitution is clear. The simple fact is that the Constitution is silent. And where the Constitution is silent, politics is supreme.
This means that all of the posturing, sanctimony and incessant charges of hypocrisy aren’t bugs of the nominating process, they’re features. When then-senator, and chairman of the Judiciary Committee, Joe Biden insisted that President George H.W. Bush refrain from nominating any Supreme Court justices in an election year, he was making a purely political argument. And just because it was a political argument didn’t make it any less reasonable. Likewise, when Majority Leader Mitch McConnell invokes the “Biden Rule” he’s making a political argument, and it’s no less reasonable coming out of his mouth than it was coming out of Biden’s.
Such partisan squabbling can be exhausting for anyone paying attention, but such is the nature of the beast. Everyone is guilty of partisanship, even those, like President Barack Obama, pretending to be above partisanship. This is the same Obama who tried to filibuster a Supreme Court nominee when he was a senator.
The far more important issue is the fact that Supreme Court appointments are so important in the first place. And on this point blame should not be allotted equally to all parties.
Leave aside the fact that the partisan wars over judicial appointments began with the “borking” of Judge Robert Bork (led by none other than Biden), the reason these fights are so ugly is because the stakes are so high. We’ve invested in the Supreme Court powers never imagined by the framers. And when I say “we” I mostly mean progressives. The growth of the administrative state and the encroachment of federal law into every nook and cranny of local life has been a century-long project of the left.
It should be no surprise that when we bequeath monarchical powers to nine – or eight – lawyers, the battle for succession to one of the nine thrones will be ugly. Indeed, it’s surprising it’s not uglier. We spend billions of dollars trying to pick a president of the United States, and in many respects the Supreme Court is now more powerful than the presidency. It’s certainly far, far, far less democratic. We appoint justices for life and many of their decisions cannot be overturned by the Congress, or the people, short of a constitutional convention.
The left, which pays a lot of lip-service to the “people power” and democratic action, has given us these black-robed kings and queens. They shouldn’t be surprised when the game of thrones gets ugly. It’s their game.
Jonah Goldberg: JonahsColumn@aol.com