Into the Wayback Machine: Why the GOP Will Never Confirm Scalia’s Replacement

Ladies and Gentlemen, step right up and into our Wayback Machine as I transport you back to a post I wrote on June 4th, 2013. Herein, I will discuss the Republicans’ epic battle to prevent the Democrats from gaining partisan control of the District of Columbia’s Circuit Court of Appeals.

And so it begins. President Obama has made three simultaneous nominations for vacancies on the U.S. Court of Appeals for the District of Columbia. One of the seats has been vacant since September 2005, when John Roberts was elevated to the Supreme Court. The Republicans claim that the DC Circuit is already adequately staffed and doesn’t need any new judges. Sen. Chuck Grassley (R-IA) has even introduced a bill to remove one of its seats and move two others to different circuits. This is a naked attempt to maintain Republican parity on the court which just recently got to a 4-4 split of Republican and Democratic nominees when Sri Srinivasan was confirmed. Mr. Srinivasan is the first Obama nominee that the Republicans have allowed to join the DC Circuit in his entire presidency.

I wrote earlier about Harry Reid’s strategy for breaking the opposition to the president’s nominees. It begins with these three judges, who were all carefully chosen to be non-controversial and well-qualified. If the Republicans block a vote on them, Reid is going to use it as an excuse to change the filibuster rule as it applies to the advise and consent role that the Constitution gives the Senate. This will not only allow these three judges to be confirmed, but many more. And it will allow the swift confirmation of the rest of Obama’s cabinet and subcabinet.

The Republicans are in a tough spot. They may be able to forestall such a drastic move by making some kind of deal, but that will never happen if they simply continue to insist that the DC District doesn’t need any more judges so the president doesn’t have any right to have a vote on his nominees. There are still enough Democratic senators who don’t want to change the filibuster rule to make a deal possible, but they are waiting to see how these judges are treated. If they are blocked, Reid will have all the evidence he needs to persuade the few remaining doubters.

Reid doesn’t have any credibility on this issue, having made so many previous threats without following through. But he’s never had enough support in his caucus to change the rules before now. At this point it is clear. If these judges don’t get a vote, they will change the rules so that they can get a vote.

Things came to a head in November, and I wrote about it extensively at that time. But I had already sussed out the details and what was going to happen back in June.

The Republicans considered it their duty to do everything in their power to prevent losing the DC Circuit Court of Appeals as a strategic base for undermining the Obama administration and having it serve as a lethal weapon in their inexorable movement to forestall and roll back progressive change.

They did not care one iota that the law determined the size of the court or that the president had the right and the responsibility to make nominations to fill it.

They just argued that the court didn’t need any extra judges and so they wouldn’t be allowing any votes on new members.

The DC Circuit is correctly seen as the second most powerful court in the country. If they were this hellbent on preserving their influence over the second most powerful court, how much more strongly do they feel about the Supreme Court?

It was the most predictable thing in the world that they would make the same kind of arguments. In this case, they can’t plausibly say that the Court doesn’t need nine members, so they just say that they’re not obligated to consider the president’s nominee. This is exactly what they argued about the DC Circuit.

There were four vacancies on the DC Circuit by the time they confirmed Sri Srinivasan in May 2013, and (as noted above) John Roberts’s seat had sat vacant at that point for eight years, including Obama’s entire first term.

No amount of shame could budge them in their obstruction. And, I suspect, they’d be willing to block a replacement to Scalia’s post for longer than a year. The approximate time when they’ll be reconciled to replacing their Lord & Savior with an Obama or Clinton or Sanders nominee is never.

This is particularly true for the anti-choice crusaders, because their mission to overturn Roe has come so close to fruition that they could anticipate the taste of victory in their mouths. They were foiled by Souter and Kennedy, but they have Alito there now. All they needed was to elect a Republican president and replace Kennedy and their life’s work would have been complete.

Then Scalia went and died on them.

But they’re not about to give up the dream. Not for shame. Not to protect a small handful of vulnerable incumbents.

Not for anything.

Over the weekend, I tried to come up with at least a theory of how their obstruction might be defeated. I pretty much came up empty.

My first sad effort included President Obama picking someone of such advanced old age that they’d be actuarily unlikely to serve on the Court for very long. My second desperate stab involved picking a sitting U.S. Senator. Maybe he could do both at the same time.

But, truthfully, the Republicans don’t want the president’s Kenyan paws on Scalia’s high seat and they’re not going to give in just because the nominee is 75 years old already. The only hope is that Obama picks a senator and a sufficient number of the club members don’t have the stomach to create a precedent that punishes only them and their job prospects.

I came up with Patrick Leahy as someone with the age and credentials and clubbiness to meet the compromise criteria, but he’s on the record mocking conservative legal ideas, including on subjects that are sitting before the Court as we speak.

No, I can’t find a way.

They will never vote to end their dream.

Even defeat in November may not sway them.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.