End the unprecedented Tea-Publican blockade of the Supreme Court

Senator John McCain was the first GOP senator to threaten to create a constitutional crisis by imposing a “blockade” of Hilary Clinton judicial nominees. McCain Vows Supreme Court Blockade Will Continue Through Clinton’s Presidency. He has now been joined by “wacko bird” Senator Ted “Calgary” Cruz of Texas, and Senator Richard Burr of North Carolina.

The GOP has descended into authoritarian totalitarianism. Republican talk of holding a Supreme Court seat vacant for four years is without precedent:

One issue weighing heavily on Republican minds these days is the Supreme Court seat vacated in February with the passing of Antonin Scalia. In an unprecedented step earlier this year, Senate Republicans refused to hold hearings for Obama nominee Merrick Garland, arguing instead that American voters should have a say in the process by voting in a new president and letting that person nominate the next justice.

Given the likelihood (albeit a slightly diminishing one) of a Hillary Clinton victory next week, Senate Republicans are starting to shift the goalposts by suggesting they might opt to leave Scalia’s seat open indefinitely if Clinton takes the White House.

“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up,” John McCain told a Philadelphia radio station two weeks ago. McCain’s office subsequently toned down his pledge of blanket opposition, but a week later Ted Cruz breathed new life into the idea, telling reporters that there was a “long historical precedent” for having a court with fewer than nine justices.

More recently, North Carolina Senator Richard Burr was even more explicit, telling a private gathering of Republicans in Mooresville, N.C. that “if Hillary becomes president, I’m going to do everything I can do to make sure that four years from now, we’re still going to have an opening on the Supreme Court.”

An extended vacancy like the one Burr is proposing is absolutely without precedent in the history of the U.S. Supreme Court. The longest Supreme Court vacancy on record is 841 days, or about two years and three months, according to an analysis of historical records conducted by the Pew Research Center.

* * *

Since 1900, the longest vacancy lasted 391 days until Henry Blackmun was finally sworn in to replace Abe Fortas in 1970. During that time President Richard Nixon nominated two other candidates to fill the seat, but both were ultimately rejected by the Senate.

The 262-day vacancy for Scalia’s seat is now the second-longest Supreme Court vacancy in more than 100 years. But it differs from the Fortas vacancy in one key respect: When Fortas’ seat became empty, the Senate held hearings and votes to consider Nixon’s choices of successor. Today’s Senate has given no such consideration to Merrick Garland.

David Leonhardt of the New York Times writes, The G.O.P.’s Radical Supreme Court Talk:

Republicans are starting to talk openly about refusing to fill Antonin Scalia’s Supreme Court seat not only through the end of President Obama’s term but indefinitely. Ted Cruz, Charles Grassley and John McCain have all sent such signals, as have some other prominent conservatives.

It’s worth taking this talk seriously.

Too many top Republicans have made clear in recent years that they care more about winning than about adhering to political norms or doing what’s best for the country. You can see this attitude in the willingness to shut down the government, the threats to default on the national debt and the stated desire to make Obama a failed president.

The political scientists Thomas Mann and Norm Ornstein call it “asymmetric polarization”: the two political parties have come to behave quite differently.

Refusing to seat a ninth justice, simply for ideological reasons, would be a clear and worrisome break with democratic tradition. It would send the message that Republicans believe a president should be able to exercise the Constitutional power to name justices only if that president were Republican. It would represent a new level of partisan cynicism.

I hope that the wiser heads within the Republican Party prevail after the election. But Democrats should be prepared for the alternative.

The alternative would mean that Senate control — which remains up in the air, given the tightness of recent polls — will be crucial. If Republicans hold the Senate, a President Hillary Clinton would be at their mercy with any nominee.

If Democrats take the Senate, they would have an obvious fallback plan: eliminating the 60-vote threshold of the filibuster — as a Senate majority can always do — and confirming a justice with 51 votes. As long as Republicans keep talking about permanent obstructionism, Democrats should not hesitate to use that [nuclear] option.

Jeff Shesol at The New Yorker writes, Will Republicans fight to shrink the Supreme Court? (excerpts):

Until very recently, today’s crop of Senate Republicans appeared to be following President Roosevelt’s eighty-year-old playbook: waiting out the election while keeping mum about a radical plan to reshape the Court . . . Shortly after Scalia’s death was confirmed, Mitch McConnell, the Senate Majority Leader, announced his intention to deny President Obama, who had nearly a year left in office, the chance to pick a new Justice. “The American people should have a voice in the selection of their next Supreme Court justice,” McConnell said in a statement. “This vacancy should not be filled until we have a new President.” One after another, Republican senators stepped forward to echo McConnell. “Trust the American people and allow them to weigh in,” Rob Portman, of Ohio, declared. Obama was out of luck—as was the man he nominated a month later, Judge Merrick Garland.

* * *

Suddenly, however, Senate Republicans are talking about the Court again. As the prospect of a Clinton Presidency has increased, G.O.P. lawmakers have made it clear that the Garland blockade was only a proof of concept. (Disclosure: I worked as a speechwriter for Bill Clinton, and earlier this year I gave unpaid speechwriting advice to the Hillary Clinton campaign.) In blocking Garland, they have prevented President Obama from appointing a third Justice to the Court. Now they’re raising the prospect of preventing a President Clinton from making any appointments at all. At a debate on October 10th, Senator John McCain, of Arizona, said flatly, “I would much rather have eight Supreme Court Justices than a [ninth] Justice who is liberal.” A week later, in a radio interview, he made that a “promise,” telling listeners that “we will be united against any Supreme Court nominee that Hillary Clinton, if she were President, would put up.” McCain later tried to soften his stance, issuing a statement in which he pledged to “thoroughly examine” any nominee. By most indications, that examination would be especially intense. Earlier this month, Utah’s Senator Orrin Hatch’s chief of staff, Rob Porter, told the Salt Lake Tribune that “close scrutiny of any future Hillary Clinton nominee will be particularly critical since she has advocated shifting the court to the left and has a history of politicizing judicial matters.” And Charles Grassley, of Iowa, suggested on October 20th that if a majority of senators are predisposed against a nominee, confirmation hearings would be a waste of time and taxpayer money.

The blockade of Garland is looking more and more like an “opening act,” as Carrie Severino, the chief counsel of the conservative Judicial Crisis Network, described it to the Washington Post back in February. Republicans have been emboldened by their success in shutting down the Garland nomination. So have several conservative interest groups, such as J.C.N., that play a big role in the politics of judicial appointments. Heritage Action, another such organization, recently issued a fund-raising appeal touting its success in “stiffen[ing] the spines” of senators. The Garland freeze-out, the letter reads, has “proven we can win on this issue”—that is, stopping liberal nominees. Establishment Republicans, too, are on board with this strategy.

* * *

Conservatives have also begun making the case that the Court is just fine with fewer than nine justices. Senator Ted Cruz, of Texas, sees a “long historical precedent” for a slimmer Supreme Court. Ilya Shapiro, a senior fellow at the Cato Institute, published an article on Wednesday contending that “the Senate is fully within its powers to let the Supreme Court literally die out.” The Constitution, he wrote, “is completely silent on this.” This is true—and misleading. Over the years, the Court has had as few as five members and as many as ten. But the size of the bench has always been determined by a formal act of Congress, not by the whims of the Senate majority (much less its minority). The number nine was set in the Judiciary Act of 1869. It is not, therefore, a constitutional requirement. Neither is it a mere suggestion. Regardless, among Republicans, the idea that eight Justices (or perhaps seven or six) is enough has gained an instant currency. “We could go another term—at least—with eight justices,” a prominent D.C. attorney who served as a senior official in the first Bush Administration told me last week. “The republic will survive.”

* * *

The results of the election could alter these dynamics dramatically. If Clinton wins the White House and Democrats take back the Senate, McConnell and his colleagues will have only one reliable recourse to stop a nominee: a filibuster. (Under no scenario will the Democrats win a filibuster-proof majority of sixty.) In 2013, when Democrats last ran the Senate, Harry Reid changed the rules to prevent the use of the filibuster to block any judicial nomination short of the Supreme Court. Now Reid—who will retire in January—is urging his potential successor as leader, Chuck Schumer, to finish the job and allow nominees to the high court to be confirmed by a simple majority vote. If Republicans “mess with the Supreme Court,” Reid told an interviewer recently, the rules would be changed “just like that.” This, the so-called “nuclear” option, is a strong possibility—a near-certainty, Senator Tim Kaine, Clinton’s Vice-Presidential nominee, said on Thursday. Schumer, for his part, has said that “a progressive Supreme Court” is his “No. 1 goal.”

But to deploy the “nuclear” option Democrats will have to retake the Senate on November 8th. If Republicans hang on to their majority, McCain’s promise to block court appointments will almost certainly become Clinton’s reality.

Arizonans can stand up to this Tea-Publican tyranny by defeating “Senator Obstruction,” John McCain, next Tuesday. Send a message to the rest of the country that his authoritarianism will not be tolerated in a democratic society. McCain has demonstrated that he is unworthy of the high office of U.S. Senator. He deserves to be defeated.