The harm in the GOP’s pseudo-principled Supreme Court stance

The interesting question is not whether the refusal by Senate Republicans to consider any Supreme Court nominee of President Obama is damaging the court and the confirmation process without plausible justification. The interesting question, rather, is why: Why do Senate Republicans believe they must stop even a relative moderate like Merrick Garland by any means necessary?

{mosads}The Constitution requires the existence of “one supreme Court,” which obliges the president and Senate to staff it and avoid significantly undermining its ability to function. Because it now has an even number of justices, the court has already begun splitting 4-4, including in the public employee union dues case, Friedrichs v. California Teachers Association. As a result, the court is proving unable to resolve questions of national importance.

Just as significantly, the court is accepting fewer cases for review. It is also expending more of its scarce resources deciding particular cases in an effort to avoid 4-4 splits, including in the contraceptive health insurance coverage case, Zubik v. Burwell. And the court is providing less guidance in deciding certain cases because deciding less is sometimes the only way to produce a majority, including possibly in the recent voting rights decision, Evenwel v. Abbott.

So Senate Republicans are harming the court. But it gets worse: They are harming the court without a justification that passes the laugh test.

For example, historical practice of the Senate calls into question the Senate’s conduct. Such practice may be evidence of the existence of constitutional conventions, which are norms that guide senators in how they exercise their political discretion so as to limit partisanship and keep the system working.

One would have to go back to the late 1860s — during Reconstruction — to find a Senate that did anything comparable to what this Senate is doing.

When Abraham Lincoln was assassinated, he was succeeded by Andrew Johnson, a Democrat who sympathized with Southern opposition to Reconstruction. Senate Republicans refused to consider a Johnson nominee to the court, and reduced the court’s size to prevent future Johnson nominations. Congress also impeached Johnson on political grounds and withdrew the court’s jurisdiction over a constitutional challenge to a prosecution before a military commission and, more generally, to the federal law that provided for military rule in the South.

Subsequent Congresses have deemed those measures unworthy of emulation. Throughout the 20th century, they were condemned in debates over court packing and jurisdiction stripping.

Since Reconstruction, the Senate’s practice has been to consider the merits of high court nominations, regardless of whether the vacancy or nomination arose during an election year. And beginning in the 20th century, the Senate’s practice has been to hold hearings and cast votes (except for the few nominees who withdrew prior to their hearings).

It does not matter constitutionally, nor as a matter of tradition, whether a nomination is made in an election year. Numerous nominations have succeeded during election years. Without exaggeration, Senate Republicans have made up a distinction without a relevant constitutional difference. After all, an “election year” constitutes 25 percent of a sitting president’s term, and in any event, the modern “election season” lasts far longer than a year.

So why are Senate Republicans behaving this way?

If Garland is confirmed, they say, the court will have a liberal majority for a generation to come, and the American people should decide whether they want that.

There is so much wrong with this asserted “principle” that one is left to wonder whether any Senate Republican actually believes in it.

For one thing, the text of the Constitution prescribes how the American people are supposed to participate in the process of nominating a Supreme Court justice, and they did so by deciding in 2012 who should make the nomination.

For another thing, if no president elected before Justice Antonin Scalia’s death should participate in the process, then neither should any senator, including Senate Majority Leader Mitch McConnell (R-Ky.). In that case, we would have to wait until 2021 to fill the Scalia vacancy.

For yet another thing, this “principle” flagrantly contradicts the longstanding assertion of Senate Republicans that public opinion should be irrelevant to constitutional law.

All that aside, their explanation rests on a mistaken premise. Justice Ruth Bader Ginsburg is 83 years old and Justice Stephen Breyer is 77, so any new liberal majority would likely last only a few years if a Republican wins the presidency in November. The American people will decide the court’s future even if Garland is confirmed.

So what is a better explanation for going nuclear? The obvious answer is that Senate Republicans simply want a Republican president to replace Scalia.

But there may be more to it than that. Sadly, part of the answer may be a desire to see the president fail, no matter how reasonable and moderate his nominee.

Another part of the answer warrants greater sympathy. Senate Republicans are understandably afraid of being “primaried” if they show any sign of weakness — that is, of compromise and governance.

The Republican base, however, may not be thinking strategically, and they are certainly not thinking institutionally. It is risky to obstruct the Garland nomination on obviously pretextual grounds when most Americans want hearings and a vote. Senate Republicans may be making it more likely that they will lose not just the presidency, but the Senate as well.

If this happens, and if they do not reverse course and confirm Garland after the election, Senate Republicans may be powerless to stop the confirmation of a genuine liberal. A Democratic Senate may not permit a Republican filibuster.

Nor may a Democratic Senate be willing to consider any nominee of a Republican president to replace Scalia. The new normal might then become a serial inability to fill vacancies on the court when one party controls the White House and the other controls the Senate.

That level of dysfunction would be horrible.

Is it naive to hope that certain Republican senators — a Lindsey Graham (S.C.), an Orrin Hatch (Utah), a John McCain (Ariz.) — will start thinking about the longer-term and acting institutionally again? Their experience and leadership are desperately needed right now.

Siegel is a professor of law and political science at Duke University.