We mourn, as we should, the loss of a truly great man. But we can’t do so in full measure—not now. While we can guess at the contours of a Nino-less Court, the horrors will become palpable only over the years. In any event Harry Reid (Frank Underwood without the charm) is leaving no time for decorum, let alone mourning.
In Tuesday’s Washington Post, the Senate minority leader urges GOP Senators to stop their “nakedly partisan” obstruction to considering an Obama nominee for the Supreme Court, “for the good of the country.” Even Robert Bork, Mr. Reid observes, was given the “basic courtesy” of a “fair hearing and a floor vote” and I suppose that’s one way of describing that particular exercise in “moderation and common sense” (the Senator’s words). “Indeed,” the Senator continues,
in the most recent debates over the judiciary, Democrats’ actions have been aimed at guaranteeing fair votes for as many qualified nominees as possible. In response to unprecedented Republican obstruction, Democrats changed the Senate rules in 2013 to allow qualified nominees to be confirmed by a simple majority vote, instead of 60 votes. This change alleviated judicial emergencies across the country by allowing a flood of qualified nominees to be confirmed. (We stopped short of changing the threshold for Supreme Court nominees — maybe that was a mistake.)
I remember this differently. The exercise of the “nuclear option” in November 2013 wasn’t about “emergencies across the country.” It was about the D.C. Circuit, and the only “emergency” at hand was to cram the President’s agenda through that court. “There are few things more vital on the president’s second-term agenda,” said Constitutional Accountability Center President Doug Kendall [in April 2013] … “With legislative priorities gridlocked in Congress, the president’s best hope for advancing his agenda is through executive action, and that runs through the D.C. Circuit.”
That demanded Senate action because, Senator Reid explained, President George W. Bush’s nominees to that court were “terrible” and “don’t … deserve to be on any court.” (Those appointees were now-Chief Justice John Roberts, Judge Janice Rogers Brown, Judge Thomas B. Griffith, and Judge Brett Kavanaugh.) In the Senator’s defense, he doesn’t think much more highly of his own party’s appointees—not really. The appointment of Judge Sri Srinivasan (confirmed unanimously before the nuclear option) and three subsequent judges, he crowed, had changed the “simple math” on the D.C. Circuit and cleared the path for executive exertions—as if those jurists were mere minions who would surely do what was expected of them.
It’s highly telling that the nuclear option and the impending brawl revolve not (as in the past) around “social” issues but around executive government. And it’s a sad fact that the Supreme Court’s record provides some support for Senator Reid’s reptilian perspective. Everyone knows how a Democratic appointee will vote on abortion or gay marriage. But there used to be a hope that “moderate” Democratic appointees would behave like actual lawyers in other sorts of cases—AdLaw, statutory interpretation, preemption, jurisdictional stuff. This is still true of the great majority of the D.C. Circuit judges (clearly including Judge Srinivasan and Judge Millett, one of the post-nuclear option appointees). It is no longer true of the Supreme Court.
The four liberal justices (including Justices Breyer and Justice Kagan, who were at the time of their appointments celebrated as the incarnation of judicial professionalism) vote together in every AdLaw case to uphold executive action on any theory, or none at all. No lawyer can say anything to break that bloc; and occasionally, the Chief or Justice Kennedy or both will join the parade. As it happens, Justice Scalia’s final opinion published prior to his death was a dissent in an administrative law case just like that, involving yet another federal plan (FERC’s) to de-carbonize the economy. The feds’ power over wholesale electricity transactions, Justice Scalia insisted, can’t possibly include authority over retail transactions—least of all when the statute tells you so. Justice Kagan’s opinion for the Court barely bothered to respond.
Stacking courts with advocates of unchecked executive power is what presidents and their henchmen do in countries on the verge of autocracy. It’s also Senator Reid’s agenda. For the good of the country, obstruct.