I’ve been as outraged as anyone about the Republicans’ theft of J. Scalia’s former Supreme Court seat — and now President Trump’s appalling opportunity to compound the damage with a second appointment. And I have read the numerous pleas for Dems to extract justice, including this reasonable and provocative Kos diary calling on Dems to eventually expand the number of sitting Justices to reclaim the stolen Garland nomination.
But the issue, and the answer, is different from what it is reported. The simple fact is that in the modern era Republicans have never confirmed a Supreme Court justice nominated by a Democratic President. Contrary to popular belief, there has never been a bipartisan “norm” that Presidents get deference in appointing Supreme Court justices — that has been a Democratic “norm” under Republican Presidents, but that has never been reciprocated by Republicans.
I wrote about this previously. The last time a Republican Senate confirmed a Democratic President’s Supreme Court nomination was 1895 — which was 123 years ago (and involved a Republican party with little connection to today’s party).
The facts: All of the 13 Supreme Court nominations since 1945 that were eventually approved by an opposing party [the Democrats] in the Senate were made by Republican presidents. The only Supreme Court nomination to be filibustered was the Republicans’ filibuster of LBJ’s nomination of Abe Fortas to be Chief Justice. Contrary to popular belief, Democrats did not filibuster the nomination of Robert Bork (he was defeated in a 58 to 42 straight vote) and Democrats did not filibuster the nomination of Clarence Thomas (who was approved in a 52 to 48 straight vote, with 11 Democrats contributing to the necessary vote margin). Pres. Obama’s nominee, Merrick Garland, was not filibustered; Republicans simply refused to hold any vote. When nominee Neil Gorsuch faced a potential filibuster by Democrats, Republicans voted to eliminate the filibuster on Supreme Court nominees. Republicans refused to allow President Obama to nominate a Supreme Court justice in a presidential election year; Democrats confirmed Anthony Kennedy in a presidential election year while Congress was considering whether to impeach President Reagan for the Iran-Contra Scandal.
Said another way, everything you have been told about Supreme Court confirmation politics is utterly nuts and wrong. The reality is: For Democrats, the President — of either party — largely gets to appoint Supreme Court justices. For Republicans, the Senate gets to pick Supreme Court justices, and if a Democrat is President, the seat can go unfilled as long as Republicans control the Senate. That is the reality.
In terms of today’s events, the first order of business is for Democrats to recognize and accept the above. The first result of which is that no Republican President will be allowed to appoint a Supreme Court justice if the Democrats control the Senate — at least not for the next 123 years.
That, btw, is not radical. It is called “parity.” Any Democrat arguing otherwise is an embarrassment.