Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky College of Law who specializes in election law and voting rights. He is the co-editor of “Election Law Stories.” Follow him on Twitter @JoshuaADouglas. The opinions expressed are his own.
Joshua A. Douglas: Republicans brought Gorsuch confirmation dilemma on themselves
Democrats also aren't confessing true reason for opposing Trump's nominee, he says
Republicans are trying to rewrite recent history regarding the Supreme Court vacancy. Their constituents should call them out for it.
In an op-ed for The Arizona Republic, Sen. Jeff Flake declared, “Even President Obama’s two Supreme Court nominees were recognized for their ability to do the job and confirmed without incident.” Sen. John Cornyn of Texas quoted The Wall Street Journal when he tweeted, “Never in U.S. history have we had a successful partisan filibuster of a Supreme Court nominee.” Senate Majority Leader Mitch McConnell accused Democrats of using “obstructionist tactics” to thwart the confirmation of Judge Neil Gorsuch to the Supreme Court.
Their hypocrisy is palpable.
In referencing President Barack Obama’s “two” Supreme Court nominees, Flake is conveniently forgetting to tell his readers that Obama made three nominations to the Supreme Court, not two: Justices Sonia Sotomayor and Elena Kagan, whom the Senate confirmed, and Judge Merrick Garland, whom Senate Republicans refused to consider even though Obama had almost a year left in his term.
Cornyn surely knows that Senate Republicans effectively engaged in a partisan filibuster of Garland’s nomination by refusing even to hold hearings.
And McConnell must recognize that he himself led “obstructionist tactics” to prevent Garland, as Obama’s nominee, from joining the court.
Regardless of the “alternative facts” the Republicans are peddling, we should all understand the GOP’s tactics last year in opposing Garland for what they were: a blatant power grab that ultimately worked.
For their part, Democratic senators who are opposing Gorsuch are not immune from this affliction. There is no principled reason to oppose Gorsuch beyond politics. On any objective measure he is qualified for the job. If Justice Antonin Scalia had passed away this past February, after President Donald Trump took office, then there would be little justification for Democrats to filibuster Gorsuch’s nomination. The Republicans’ brazen action last year on Obama’s nominee clouds the current debate.
Both sides should acknowledge what is really going on: Republicans refused to consider Garland for purely political reasons; Democrats are going to filibuster Gorsuch for similarly partisan justifications.
This state of affairs shows that the Supreme Court confirmation process is broken. As Justice Ruth Bader Ginsburg herself recognized, some Republican senators who voted to confirm her in 1993 “today wouldn’t touch me with a 10-foot pole.” The Senate voted to confirm Ginsburg by a 96-3 vote. That kind of bipartisanship on Supreme Court nominees is unfathomable today.
What can we do to fix the problem? For one, senators on both sides need to start telling the truth about their real motivations. Republicans should not hide behind a false claim that the Senate treated Obama’s nominees fairly.
Democrats should acknowledge that their filibuster of Gorsuch is directly related to the Republicans’ failure to consider Garland. Actually telling the truth – which should not be so unfathomable – will help voters discern whether to trust the current incumbents come the next election. Senators’ actions should have consequences, but it is difficult for average Americans to evaluate their senator’s activities without honest and accurate information.
In addition, Senate Republicans and the Trump White House should offer Democrats an olive branch. Perhaps it is an agreement to consider only names from a pre-approved list that the Democrats provide for the next vacancy. Maybe Republicans would agree to give Garland a vote if a liberal such as Ginsburg steps down. Or perhaps there is something else that would cause both sides to stand down.
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And both because they are in the majority and because they were at fault last year by being so political with the Garland nomination to the Supreme Court, Republicans should be the first actors in a ceasefire. Although the confirmation process was already breaking down somewhat before last year, McConnell pushed it over the edge by refusing to consider Obama’s choice with almost a full year left in the presidential term.
Good leaders know how to compromise for the good of the country. McConnell should show his leadership skills. Both sides are obscuring their real motives for their partisan actions. Neither side’s spin is good for the country.
To get that message across to the Senate, let’s tell our representatives they must acknowledge what they are really doing and force them to account for their political power grabs. It would be the first step in fixing a truly broken process.