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Behind Supreme Court standoff, party grievances from years ago

Understanding the Hill

The acrimony between the parties over nominations has created a highly charged atmosphere. But one Democratic senator says the rancor has always been overcome.

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    Sen. Charles Schumer (D) of New York, center, joined by Senate minority leader Harry Reid (D) of Nevada, speaks with reporters on Capitol Hill in Washington, Tuesday, Feb. 23, 2016, after Senate majority leader Mitch McConnell (R) of Kentucky announced the Senate will take no action on anyone President Obama nominates to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia.
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On Tuesday morning, just a few hours before Republicans announced they would put off any action on a US Supreme Court nominee until the next president, Sen. Chris Coons (D) of Delaware was up in the Senate Press Gallery, warning that such a delay would undermine American democracy.

Media crowded around him as he settled into one of the gallery’s comfy, leather armchairs. An NPR reporter, sitting cross-legged at his feet and holding her long microphone toward him, joked that it was story time. Everyone laughed. But he did share a telling story.

One of his most memorable meetings as a member of the Senate Judiciary Committee – ground zero for judicial nominations – occurred not long after his 2010 election to the Senate. Very senior members of the committee got into a disagreement, he said. They then detailed, in a back-and-forth exchange, all the ways that each party had egregiously offended the other in confirmation hearings – going back more than two decades.

“Several of us who were brand-new members of the Senate were treated to a reminder that there has been a steady grinding escalation of the division in partisanship over a long period of time.”

When it comes to judicial nominations, senators, like elephants, don’t forget. Decades of disputes – from the Democratic torpedoing of conservative Supreme Court nominee Robert Bork in 1987 to Republican blocking of federal judges during the Obama administration – form an important backdrop to today’s bitter feud over a replacement for Justice Antonin Scalia, who died earlier this month.

True, the Senate’s history of recrimination is not, by any means, the most important factor in today’s standoff. Rather, this particular seat involves high stakes: a lifetime appointment that could replace a GOP-backed strict “originalist” with a Democratic-nominated justice who believes the Constitution is a “living” document, to be applied more broadly as society evolves. The choice would probably tip the balance on the court in a more liberal direction.

Still, the bad blood between the parties over nominations “has created an atmosphere” that led up to this moment, a senior Republican official told the Monitor.

And this atmosphere is highly charged, crackling with biting accusations and dueling quotes that show reversed positions.

What senators are saying

This week, for instance, Sen. Christopher Murphy (D) of Connecticut said that the GOP stance is akin to Republicans making an obscene gesture toward the president and Americans. He excoriated the party for denying the legitimacy of the Obama presidency, which still has 11 months to go.

Republicans such as Sen. Lindsey Graham (R) of South Carolina are also firing off rounds, saying Democrats would do the same thing if the shoe were on the other foot – quoting Vice President Joe Biden urging a potential delay when he was in the Senate in 1992.

For Senator Graham, this week’s GOP decision is payback for 2013, when then-Senate majority leader Harry Reid (D) of Nevada unilaterally changed Senate rules to allow all presidential nominees, except for Supreme Court ones, to be approved with a simple majority vote – the so-called nuclear option. It deprived Republicans of the ability to block a nomination with a 60-vote threshold.

“I’m personally upset with the way they changed the rules.... I felt completely betrayed,” Graham told the Monitor – a telling remark from a Republican who often works across the aisle. Graham was the lone Republican to support President Obama’s previous two nominees, Elena Kagan and Sonia Sotomayor, when the Judiciary Committee approved them.

Graham may steam over the Reid move, but Democrats say that was in response to GOP stonewalling of federal judges. And Republicans charge that, in the previous administration, Democrats did the same with Bush judicial nominees.

“There’s a history of bad feelings, yeah,” says Sen. Charles Schumer (D) of New York. But, he adds, “the bad blood has always been overcome.” He cites as an example that Democrats let the Bork nomination proceed to the full Senate for a vote, even though he was defeated in committee.

Indeed, Democrats say Republican refusal now to even hold a confirmation hearing is a first. They’re not going to let the issue drop, hoping that public opinion will force Republicans to change their mind or will hurt them at the ballot box in November.

Republicans, on the other hand, say you have to go all the way back to 1888 to find the Senate filling a Supreme Court vacancy that arose when it was an election year and when the White House and the Senate were controlled by two different parties.

Justice Anthony Kennedy, confirmed by a Democratic-controlled Senate in Ronald Reagan’s last year in office, doesn’t count, Republicans say, because he was nominated the year before – and on the heels of two failed nominations, including Judge Bork’s.

The role of newer senators

Can this atmosphere in the Senate be calmed?

One factor might be fresh blood, rather than bad blood. Nearly half the senators have never voted on a Supreme Court nominee, including Senator Coons, who has been quietly talking with his Republican counterparts, trying to bridge the divide.

Newer senators, elected at a time of heightened polarization, constantly hear complaints from constituents about dysfunction, he said in an interview Friday. “That means, as a newer senator, you have a choice ... either ceaselessly blame the other party or try to find a way to address and reduce” the hyper-partisanship.

In his discussions with Republicans this week, several “pointedly” raised the Democrats’ contribution to the atmosphere. “The challenge is, I’ve asked every senator, ‘How does this end? How does this ever get better?’ ”

In response to the GOP move Tuesday, Coons explained to his Republican friends that Democrats might feel compelled to block spending bills or a future nominee from a GOP president. He thinks there are Republicans who are “uncomfortable” with the current GOP strategy, and that the next step is to see whether Obama nominates a consensus candidate who could appeal to Republicans.

But even newer senators are influenced by the tumultuous history of the judicial nomination process.

“History means something to me. I try to stick with precedent,” says Sen. Jeff Flake (R) of Arizona, explaining why he, too, was upset by the Democrats’ “nuclear option.”

Senator Flake, elected in 2012 and a member of the Judiciary Committee, says that Republicans have discussed extending the nuclear option to Supreme Court nominees, so that a future Republican president’s nominee might be confirmed with only a majority vote. The downside for them is that this would also hold true for a Democratic nominee.

“There’s been discussion, yeah, but no consensus. Not even close,” says Flake. As battle-scarred as the Senate may be, such a move might just be a bridge too far.

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