Republican Insurgency Threatens the Functioning of the Supreme Court

Yesterday I said that this might be the biggest challenge this country faces in the coming days.

Senate Republicans are choosing sides ahead of a brutal conflict over how to handle the lingering Supreme Court vacancy, with Jeff Flake firing back Thursday at a suggestion by Ted Cruz that the party could indefinitely block any nominee from Hillary Clinton.

Here is what the editorial board of the Washington Post said about this latest threat of obstruction by Ted Cruz:

Sen. Ted Cruz (R-Tex.) raised the prospect of an indefinite Republican blockade around the vacant Supreme Court seat. Irresponsibly, Senate Republicans have refused to even hold hearings on President Obama’s nomination of Judge Merrick Garland to fill the seat of Antonin Scalia, who died in February. Now Mr. Cruz seems to be suggesting that this willful dysfunction be carried into the new Congress and presidency. “There is certainly long historical precedent for a Supreme Court with fewer justices,” he said.

Mr. Cruz did not say he would oppose a nominee submitted by Ms. Clinton, which would be within the bounds of normal political discourse. Rather, he has suggested that Republicans in the Senate, if facing a Democratic president, simply not act. Crudely, his message is: We lost the presidency, so let’s take our marbles and go home. Such thinking seems to come easily to the senator who led the 2013 government shutdown. But it runs against the oath Mr. Cruz took as a senator to “well and faithfully discharge the duties of the office.”

As I’ve written previously, blocking the consideration of a Supreme Court nominee from the opposing party is a way to challenge the legitimacy of the president and our Constitutionally established institutions. It is, as Doug Muder wrote, the strategy of a confederate insurgency.

The essence of the Confederate worldview is that the democratic process cannot legitimately change the established social order, and so all forms of legal and illegal resistance are justified when it tries…

The Confederate sees a divinely ordained way things are supposed to be, and defends it at all costs. No process, no matter how orderly or democratic, can justify fundamental change.

Paul Waldman writes that over the last few years, this insurgency has been breaking down the norms (not rules, necessarily) that have allowed our government to function for decades.

Again and again in the time since, Republicans have run up against some norm that restricts them from doing what they’d like, and said to themselves, “Well, why don’t we just violate this norm? There’s no law against it.” There’s no rule or law preventing you from filibustering literally every bill more consequential than the renaming of a post office, even if that wasn’t how filibusters were understood before. There’s no rule or law preventing you from having your commissioners on the Federal Election Commission just decide that election laws don’t have to be enforced. There’s no rule or law preventing you from threatening to default on America’s debt, even if up until then everyone considered that to be insane. There’s no law or rule against writing to a foreign government with whom the administration is conducting delicate negotiations over matters of the highest national security questions, and saying, just so you know, we’ll tear up any agreement you make with the Obama administration.

The larger point is that at the same time they were becoming more ideologically radical, Republicans embraced an unprecedented procedural radicalism, in which they’re perfectly happy to take a sledgehammer to any and all of the norms that enable the government to function.

Republican gridlock in Congress has now become so normalized that these days no one expects any legislation to get passed. Now they’re threatening to do the same thing to the Supreme Court. Their refusal to even hold hearings on President Obama’s nomination of Judge Garland is already starting to have that effect.

The U.S. Supreme Court released its December calendar of oral arguments last week. Normally, the justices hear 12 or more cases during this sitting, but this year, they have scheduled only eight — a calendar court commentators have called “bare-boned” and “anemic.”

In addition, the Court has not yet scheduled oral arguments in three important and controversial cases involving the separation of church and state, property rights and class action lawsuits. All three cases were accepted by the court before Justice Antonin Scalia’s death in February. Speculation from Amy Howe at SCOTUS Blog is that Scalia had voted to grant review, and that the court — still lacking his replacement — is stalling to avoid a 4-4 tie.

There’s some evidence that the court has changed its behavior because it has only eight justices. Justice Sonia Sotomayor has said publicly, “It’s much more difficult for us to do our job if we are not what we’re intended to be — a court of nine.” Justice Ruth Bader Ginsburg has opined an eight-person court is “not good enough” to decide difficult and controversial cases such as the immigration and public union fee cases the justices divided 4-4 on last term. “When we are evenly divided, it is equivalent to denying review,” Ginsburg said.

Every concerned citizen who cares about a functioning democracy should be outraged. It is not likely that the insurgents in Congress will stop this kind of behavior on their own. The only way to restore the two branches of government that have been stymied by these actions is for citizens to vote as if it mattered.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.