Noah Feldman: Supreme Court confirmations enter new era

Forget Robert Bork. The confirmation of Neil Gorsuch after the rejection of Merrick Garland marks the new high-water mark in the overt, partisan politicization of the Supreme Court. After the Democratic Senate rejected Bork 30 years ago, President Ronald Reagan got to choose another appointee. After the Republican Senate refused to vote on Garland last year, President Barack Obama was denied the same chance.

We’ve entered a brave new world, in which the party that controls the Senate can now control court appointments. If the Democrats win the Senate while Donald Trump is president, there’s no way they’ll confirm any of his nominees, no matter how long he has left in his presidency. And Republicans, who invented the rules of this new game, won’t confirm Democratic Supreme Court nominees so long as they control the Senate.

The tale of how we got here is remarkable, and will be studied closely by historians.

It’s too simple to say that the process started with the Bork nomination, the first in which an otherwise qualified nominee’s constitutional philosophy was invoked as a reason to block confirmation. After that, George H.W. Bush had two nominees confirmed by a Democratic Senate, David Souter and Clarence Thomas. At the time, no one thought the Senate could simply refuse to confirm any presidential nominee for purely political reasons. The idea was simply unimaginable.

Souter and Thomas were the last two nominees to be confirmed by a Senate controlled by a different party than the nominating president. But that wasn’t because the idea of partisan blockage had been born.

Rather, the explanation is mostly a matter of political coincidence. The six justices confirmed after Thomas and before Gorsuch – two each nominated by Bill Clinton, George W. Bush and Obama – were all filling openings that were created while the president and the Senate majority were of the same party.

And while some of those openings may have been timed by retiring justices to give the president a chance to nominate their successors, it isn’t true of all of them. Chief Justice William Rehnquist died in office. And Justice Sandra Day O’Connor retired because her husband was ill.

So what changed? Part of the answer is the Bush v. Gore case, which dramatized how political the Supreme Court had become. But a more significant answer must surely be the erosion of the idea that any aspect of the Senate’s agenda should be devoted to the public good rather than partisan advantage.

In past eras, it would have seemed disreputable for senators to announce they were using their constitutional power to block nominees purely to shape the composition of the court.

Today, however, senators have realized the public won’t make them pay a price for such obstructionism. Indeed, they might even be punished by the ideological base of their party for failing to obstruct a nominee from the other side.

That was the key insight, I think, that drove the Senate’s Republican leadership to block Garland. The Republicans probably didn’t even think that they were about to win the presidency. They may not even have intended to block Hillary Clinton’s nominees if she won in November.

Rather, their calculus was based on the estimation that a vote to confirm Garland could be used against them in future primary challenges. Every time Garland participated in a judgment with a perceived liberal outcome, it would provide an opportunity for a television ad criticizing a defecting Republican for having voted for him.

In contrast, Senate Republicans viewed blocking Garland as a low-risk proposition. If Clinton had been elected along with a Democratic Senate, Garland or another liberal would’ve been appointed over the Republicans’ dissenting votes. That would’ve spared any Senate Republicans from having to vote to confirm a Democratic nominee.

If Clinton had been elected with a Republican Senate, the Republicans would have faced the choice of trying to block a Democratic nominee for four years or more. But they would have had the option of backing down and saying the Garland block was appropriate only because of the timing of Antonin Scalia’s death in the last year of Obama’s presidency.

In reality, it all worked out better than the Republicans could have dreamed – and worse for the Democrats. Trump plus a Republican Senate meant the voting public rewarded the Garland obstruction instead of punishing it.

The Republicans gambled by making the Supreme Court into a more salient issue in the national election than it would have been had Garland been confirmed. And in the process of winning that bet, they taught us all a transformative political lesson: The public either liked what they did, or didn’t care enough to make them pay a price for it.

That bitter lesson hasn’t been lost on Senate Democrats, who sacrificed a filibuster that could potentially have been useful to them in a future confirmation battle on the theory (presumably) that the base would punish them if they didn’t exhaust all possible tools against Gorsuch. This was, I think, a self-destructive move.

Now, if Trump should get another Supreme Court pick, there will be no Democratic constraint on his choice at all – unless the Democrats win the Senate before that happens.

The upshot is that control of the Senate is now a winner-take-all proposition for Supreme Court confirmation. I fully expect that, for the foreseeable future, if the president and the Senate majority don’t come from the same party, there will be no confirmations at all.

After all, without a conception of public duty, there’s simply no reason for the Senate majority to go along with a president it doesn’t like. The Supreme Court has showed that it can function with reduced numbers.