Here’s a newsflash for Americans who have been following the Senate logjam over President Barack Obama’s nominee for the Supreme Court: dysfunctional politics in Washington is slowly eating away at America’s third branch of government.
The partisan bickering and parliamentary maneuvering between Republicans and Democrats over DC Circuit Court of Appeals Chief Judge Merrick Garland is what it would look like if adults is suits never graduated from kindergarten.
On one side, we have Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley refusing to follow the well-worn precedent of the Senate as an institution: meeting with the Supreme Court nominee; asking the nominee to fill out the lengthy questionnaire that delves into everything from temperament and experience to case law; going through the hearing process; and voting on the nominee in the full Senate. We have the Chairman of the Judiciary Committee taking to the Senate floor and accusing the Chief Justice of the Supreme Court of using politics as the basis of his rulings rather than legal precedent and the U.S. Constitution. And outside the Senate chamber, we have special interests like the Judicial Crisis Network pumping millions upon millions of dollars in ads and hundreds of thousands of calls into Senate offices urging the Republican leadership to stand firm in their obstruction.
On the other side, you have a Senate Democratic minority doing everything possible to make Merrick Garland’s nomination a political issue in a presidential election year. Organizations like MoveOn.org and the Constitutional Responsibility Project—in coordination with the Senate Democratic caucus—are using the airwaves and social media to demand that Republicans stop the gridlock Americans who tune into C-SPAN are granted the pleasure of watching Sen. Harry Reid use his opening statements nearly every day over the past week to lambaste his Republican colleague from Iowa for holding the nation’s highest court hostage to politics. “What needs mending,” Reid said on April 6, “is the Judiciary Committee under his [Grassley’s] chairmanship, which he has annexed as a political arm of the Republican leader’s office.”
Democrats, however, aren’t off the hook. As Sens. McConnell and Orrin Hatch like to remind anyone within earshot, Harry Reid and his caucus were practicing the same obstructionist tactics when they were in the minority during President George W. Bush’s time. The headline of Sen. Hatch’s essay on Time.com was as blunt as could be: “Democrats are SCOTUS Hypocrites.”
Hatch, however, is only half right. The fact is that on Supreme Court nominations, both Republicans and Democrats have poisoned the confirmation process through overt partisanship. What should be one of the toughest job interviews in Washington has long been poisoned as yet another political exercise. In the eyes of Republicans, what Democrats did to Robert Bork in 1987 was an inexcusable display of harsh politics. Three decades later, Democrats are feeling those very same sentiments: the GOP, in their minds, is not being fair to a man who is eminently qualified as a jurist.
Mitch McConnell and Harry Reid should both look at themselves the mirror and ask a simple question: how did we get to this point? No one is innocent in playing the political card.
For millions of Americans, the Supreme Court is a secret institution where nine men and women dressed in black robes and seated on comfortable black chairs behind a grand wood-paneled dais interpret the law for the rest of us. It rarely gets mentioned in the media unless a consequential decision of such immense importance is involved. Yet the Supreme Court is also the final arbiter of the law as we all know it. When its work gets more difficult due to partisan bickering in Congress, the United States has a problem.
The spat over Judge Garland’s nomination may be a lost cause during the ugliest presidential election year in recent history. But there is still hope for Republicans and Democrats to come together after the elections in November and craft a bipartisan compromise as to how to handle all Supreme Court nominees in the future. It’s time to stop making the nomination process worse and start making it better for future congresses through a set of rules that will be followed consistently regardless of who makes the nomination, which political party happens to control the Senate, and who the nominee happens to be.
Daniel R. DePetris is a contributor to The National Interest magazine and a private political analyst.