Donald Trump’s impending inauguration and the inevitable clash over filling Antonin Scalia’s Supreme Court seat forces us to take a look at the institution. Regardless of the opinions that people will have about whomever the president-elect nominates – and one can rest assured that there will be many, both visceral and glowing, how will the partisan navigations used to support or derail Trump’s nominee impact a healthy democracy. The answer: probably not very well.

First of all, the institution has been badly damaged over the years by hyper-partisanship over federal court nominees, cabinet nominees, and frankly, nearly everything else trivial or gargantuan. Some of the reasons are enacting political goals, others revanchist but in many cases, one-upping the other side. And it is by no means limited to the Senate. Last week, the Machiavellian atmosphere very nearly led to the gutting of the independent office that screens ethics complaints against members of the House. But court fights typically take center stage and the consequences are ominous. So too are the consequences of the integrity of the Senate.

As I’ve written many times (primarily in this publication), the slow-walking and outright stalling of non-controversial nominees has hurt the efficiency of benches nationwide which has created a backlog of an unnecessary delay of justice. In the last Congress, Senate Majority leader Mitch McConnell allowed just 22 nominees to be voted on, leaving vacant 114 slots, including 42 that are categorized as judicial “emergencies” (not every slot has nominees but that’s hardly the point). Again, these were “non-controversial,” nominees – hence, they were poised to be confirmed near unanimously if ever brought to a vote. So keeping these slots open – some for as long as two years, is just a display of mean-spirited avariciousness that is really abusing not simply what the Founding Father’s intended but also the prestige of the U.S. Senate. Democrats by contrast confirmed 10 Bush nominees for lifetime appointments en masse even though it was just two months before the 2008 election.

Conversely, in 2013, Senate Republicans balked about Democrats eliminating the filibuster for all but Supreme Court nominees in the 113th Congress. This again was done to thwart the ridiculous abuse of the filibuster by Republicans at cabinet and judicial nominees. Republicans responded by citing the fact that the filibuster had been in place for more than 225 years and, that is a valid assertion. But that only forces people to think of how democratic the filibuster is and whether the gridlock it creates is truly worth it. Again, its intent upon creation was to stop a nominee on extraordinary circumstances but it was abused to the point that it had to be gotten rid of eventually. Republicans spoke of doing so many times – Democrats simply blinked first.

Now let’s look at the elephant in the room – the SCOTUS seat. Senate Minority Leader Chuck Schumer vowed recently that he would “absolutely” not hesitate to hold the seat open, adding “It’s hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we could support.” Schumer also appeared to go a step further, vowing, “We are not going to settle on a Supreme Court nominee.” In the longrun, that could be problematic.

Schumer and other Democrats were harshly critical of their Republican colleagues not allowing Obama’s ill-fated nominee, Merrick Garland, receive a hearing – much less a vote, following Scalia’s death. Allow me to break down the soundness of these two juxtapositions.

Though some have quarrelled with the notion of leaving a Supreme Court seat vacant for nearly a whole year prior to a major election, I don’t particularly have a problem with it. I’m not saying it’s ideal. But you couldn’t put a gun to my head and make me vote to grant a lifetime appointment to a high court nominee with views completely antithetical to my own, particularly right before I might have a chance to get someone more to my liking so, that goes both ways. I’ve had friends who share my politics disagree with me but, that’s just the way it is. But holding it open for four years is an entirely different animal.

Now Schumer is a master tactician – he knows what he’s doing. But not filling an appointment at all is neither healthy for the institution or democratic mores (and I emphasize the lower case “d” in democratic). Filibusters are fine for an incredibly tainted nominee. Hell, if the President-elect nominates ten Clarence Thomases, than Democrats should mount 10 filibusters. But if he nominates one or two Thomases then follows it up with someone generally agreed upon to be of sound mind with mainstream views and competent qualifications, Democrats would be wise to not block it. I’m not saying most – including Schumer itself should vote for that person on the Senate floor if they are not assured he/she doesn’t share their priorities, but at some point, filibustering them to death for four years will not be looked upon favorably by the American people.

During the 2004 election cycle, President George W. Bush hit hard at Senate Democrats for “blocking” his jusdicial nominees. Never mind that they had held up a mere ten that they considered to hold extreme views and never mind that they had let more than 200 other nominees through without nary a whimper. Republicans hit hard at the “blocking” and it was pivotal in costing Minority Leader Tom Daschle his Senate seat.

Consider this. Mitch McConnell was rightfully villified for saying his sole objective was to make Barack Obama a one-term President. During the 2018 mid-terms – and even the ’20 midterm campaign should Trump be a candidate, Republicans will not think twice about morphing Schumer’s words into an ad.

My lesson. Pick your battles carefully. There will be other elections. But doing so would be a profound weakening of the institution which will mean an inevitable, and an unhealthy paradign shift. In other words, winning is fun but there’s no such thing as winning without consequences. And as an addendum, it does matter how you play the game.

SCOTT CRASS
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