“What we’re trying to do is set the stage and make sure that both the White House and the Senate Republicans know that we expect to have significant input in the process,” Sen. Charles E. Schumer, New York’s senior Democrat, said in an interview. “We’re simply not going to roll over.”
Off the top of your head, do you know when those quotes originated?
I’d forgive you if you thought that was from the upcoming fight over replacing the late Justice Ruth Bader Ginsburg. No, those quotes come from a New York Times report from May 1, 2001.
Nineteen years ago, George W. Bush had just been sworn into office, and Democrats were gearing up to fight every single one of his court nominations. It’s hard to remember because that was the brief moment after the contentious 2000 election but before the tragic events of Sept. 11, 2001.
The introduction to that New York Times piece leads off by saying: “President Bush has yet to make his first nominee to a federal court and no one knows whether anyone will retire from the Supreme Court this summer, an event that would lead to a high-stakes confirmation battle. Nonetheless, the Senate’s Democrats and Republicans are already engaged in close-quarters combat over how to deal with the eventual nominees from the Bush White House.”
Internal memos from that period, released in 2003 by the Wall Street Journal, showed Democrat Illinois Sen. Dick Durbin’s office opposing nominees like Miguel Estrada. Democrats feared Estrada because he was “especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.” Estrada became the first person ever filibustered for an appeals court in U.S. history.
Democrats at the time were following the advice of leftist legal scholars like Harvard’s Laurence Tribe and Cass Sunstein at the University of Chicago. These legal scholars used their heft to tell senators, “[I]t was important for the Senate to change the ground rules and there was no obligation to confirm someone just because they are scholarly or erudite.”
And so Democrats played that gambit. They blocked numerous Bush judges for eight years. It took the infamous Gang of 14 to get the now-Justice Samuel Alito through the confirmation hearings.
That compromise saved the judicial filibuster. Sen. Harry Reid (D-NV) immediately discarded it in 2013 to confirm Barack Obama’s appointees when Senate Republicans, under Mitch McConnell (R-KY), used these same tactics on Democrats.
The moment we’re in with people claiming a political crisis is upon us exists because Democrats wanted to fill the court system with only far-left candidates. They tried blocking and preventing anyone with even slightly conservative leanings from sitting on the court. No one was worried about Republican anger creating a political crisis.
But it’s only now — now — when Republicans have the same powers to confirm their preferred option to the Supreme Court, that Democrats claim a legitimacy crisis on the Supreme Court. It’s now, when Republicans are using Democratic tactics, that we have the political turmoil.
This moment isn’t a political crisis. We’re experiencing the howls of a party that lost the game it started. Democrats, in all their bluster and brinksmanship over two decades of filibuster tactics, are mad that after all their strategic moves, they watch as Republicans fill the judiciary with the brightest minds conservative intelligentsia has to offer. Now the prospect of 6–3 Supreme Court is within grasp.
This moment isn’t a political crisis. It’s a whirlwind. Democrats sowed the wind for decades, and now they’re reaping the whirlwind. Democrats got warned at every juncture, every year, and moment that if they continued down this road, it would harm the court’s legitimacy.
The Supreme Court got warnings too. Scalia warned for decades that the more legislative power the court pulled into itself to rule, summarily, on issues like abortion, that more contentious and political the court would become.
The left ignored these warnings, ignored the dissents, and kept trying to enforce judge-created standards on all Americans. Scalia warned in his Planned Parenthood v. Casey decision that if the Supreme Court continued enforcing value judgments on people, instead of interpreting the laws passed by people, the results could be catastrophic:
Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.
If the highest court in the land is essentially a master legislator, then the confirmation process for that legislator will resemble any other election process. And that’s where we are today. Democrats have tried, for decades, to rig that process in their favor, and it’s blown up in their face. Perhaps someday, in the future, it works in their favor. But not now.
For better or worse, the Supreme Court is a political body at the moment. The only way to fix that is to infuse the court with justices committed to extricating the court from these positions. Many of the names on Trump’s shortlist are committed to doing that. That’s why the way to save the legitimacy of the court is to confirm Trump’s nominee.