More than 150 days ago, Merrick Garland walked into the Rose Garden, straight out of central casting, ready for his role as the next Supreme Court Justice. When President Obama nominated him on March 16 to fill Justice Antonin Scalia’s vacant seat, he praised Garland as the very epitome of a judge. Plus, he’s so likable. Who wouldn’t buy a ticket to something starring that guy?
But asking Garland to play the lead in the Senate confirmation drama turned out to be a lot like casting Charlie Chaplin, in his baggy suit and bowler, to save the planet from certain destruction by laser-eyed aliens.
One hour after news of Scalia’s death—Senate Majority Leader Mitch McConnell moved to threat level apocalypse. He lined up his caucus to block any Obama appointee, before even knowing his or her name. Today, with the Senate’s August recess drawing to a close, would-be Justice Garland is still twisting in the wind. People have been shocked, shocked at McConnell’s belligerence. They shouldn’t have been.
For more than forty years, free enterprise and social conservative groups have used every tool at their disposal —grass roots activism, campaign spending, lobbying, scholarship, high impact litigation—to create the Supreme Court they wanted. And they’ve mostly succeeded.
“The Roberts Court is much friendlier to business than either the Burger or Rehnquist Courts, which preceded it, were,” law professors Lee Epstein and William M. Landes and Seventh Circuit Judge Richard A. Posner concluded after analyzing more than 2,000 post-World War II Supreme Court cases.
It’s not hard to see why business interests would take such an interest in the courts.
Consider just how much a business friendly court is worth. Two weeks after Scalia’s death, Dow Chemicals settled a lawsuit for $835 million rather than continue an appeal to a Court in ideological flux. Before Scalia died, Dow’s case was pending review by the Court. The chemical company had appealed a $1.1 billion verdict entered against it in a class action price fixing case. For decades, business interests have been pursuing both legislative and court restrictions on class action lawsuits. They have had many successes. The Dow case, together with three other class action disputes on the Supreme Court docket in the term just ended this summer, were seen as critical. And Scalia was the Court’s most pungent antagonist toward class actions. His death threw a wrench into Dow’s appeal.
“Growing political uncertainties due to recent events with the Supreme Court and increased likelihood for unfavorable outcomes for business involved in class-action suits have changed Dow’s risk assessment of the situation,” the company said, explaining its decision to settle.
When McConnell decided to mount a boycott of any Obama nominee, he could not have known about Dow’s decision. But he certainly knew how important the Court’s pro-business environment was to the Republican donor and business class. (Dow Chemicals is just one member of that class, and this election cycle its PAC has given Republican candidates four times the amount it has given to Democratic candidates).
As an added bonus, the Republican voter base was also intensely invested in maintaining a conservative Court. When Donald Trump called for “Second Amendment people” to do something about Hillary Clinton getting “to pick her judges,” he not only stepped over the line for the umpteenth time, he also tapped into the quivering fear the Republican party has of losing control of the federal judiciary. Pro-gun, anti-abortion, and anti-gay rights groups have fixated on judicial nominees for years.
This winter, in the midst of a tumultuous presidential primary fight that seemed to be tearing the party apart, McConnell must have thought that satisfying both the base and the business class offered a rare shot at a Hollywood ending.
The history of conservative activism involving the courts dates back to August 1971, when Lewis F. Powell, Jr., produced a memo for the Chamber of Commerce (often referred to as the “Powell Memo”) now considered the “Urtext” of the conservative business agenda. The Powell Memo encapsulated the growing sentiment among conservative business interests in the late 1960s and early 1970s and warned of an existential threat to free enterprise. “It is time for American business—which has demonstrated the greatest capacity in all history to produce and to influence consumer decisions—to apply their greatest talent vigorously to the preservation of the system itself,” Powell counseled.
Two months later, Powell was nominated to the Supreme Court, and six years later, the Chamber launched its Litigation Center. The Chamber now files briefs before the Court far more often than it did in the past and wins in those cases more than two-thirds of the time. It has also instituted a systematic effort to influence the appointment and confirmation of judges. Every nominee at every level of the federal bench is carefully evaluated against a set of pro-business criteria (even Justices Ruth Bader Ginsburg and Stephen Breyer were endorsed by the Chamber). The Litigation Center, staffed by a cadre of former Court clerks, is a dominant force in shaping the Court’s agenda, arguably second only to the Solicitor General of the United States.
Since then, the Chamber has been joined in its efforts by other influential groups such as the Judicial Crisis Network, part of a mysterious cluster of dark money groups concentrating on the judiciary. According to the New Yorker’s Jane Meyer, it is affiliated with the Koch brothers, having been founded by companies and people in their orbit. It is also one of the leading spenders in state judicial elections.
The Network was founded in 2001 during the Bush Administration with funding from conservative businessmen and benefactors. Originally, it was named the Judicial Confirmation Network, and its goal was getting Bush’s nominees confirmed. After Obama’s election, the “confirmation” network became a “crisis” network.
Among the Network’s tactics has been the disciplining GOP Senators who don’t toe the party line. When Kelly Ayotte said during her 2010 primary campaign for one of New Hampshire’s Senate seats that she would have voted in favor of Sonia Sotomayor’s confirmation, the Network struck with a radio attack spot. That ad was credited with nearly costing Ayotte the Republican nomination to a tea party favorite.
This time around, Ayotte likely was nervous once more about her conservative credentials, especially considering that the day before Scalia’s death a major Koch brothers backed group, Americans for Prosperity, announced it would not support her reelection effort. Ayotte was the only vulnerable Republican incumbent cut off by the group. But once Ayotte joined McConnell’s blockade of Garland’s nomination, the Network announced an advertising push to support her and other Senators. In addition, Americans for Prosperity though technically not “supporting” her entered the fray this summer, launching ads attacking Ayotte’s opponent.
Other Republican Senators who have waffled have been harshly disciplined. When Kansas Senator Jerry Moran hinted that perhaps Garland should get a hearing, a local tea party group threatened a primary challenge. The Network was reported to be preparing an ad spend against him. FreedomWorks, another dark money, pro tea party group, unleashed on Moran as well. “We’re going to make him our example,” the group’s communications director warned. Within a week, Moran reversed course.
All of these efforts – by the Chamber, the Network and their allies – have inarguably produced results. In the grindhouse climate of the last eight years, numerous nominations have wilted and died. Since Republicans took over the Senate in 2014, the pace of judicial confirmations has slowed to the pace of a Japanese art movie from the 1950s. And now the Garland nomination is in a deep freeze.
The price, however, has been high, while the White House and Democrats have been working to ratchet up pressure on Republican Senators and inflict maximum electoral pain on them for failing to deal with the vacancy. In a conference call with reporters last week, Senate Minority Leader Harry Reid (D-NV) laid it out. If Republican Senators want to distance themselves from their cartoonish presidential nominee Donald Trump, they should confirm Garland.
During the Republican convention in Cleveland, one pro-Garland group drove a bus emblazoned with the slogan “Do Your Job” around town and placed ads urging confirmation to greet attendees as they arrived at the airport.
One of the most unexpected politicians bruised by the boycott has been Iowa’s Chuck Grassley, chairman of the Senate Judiciary Committee. The six-term Senator won his last election with 64 percent of the vote. Then one mid-summer poll showed his opponent coming within one point of him. “Senator Grassley is something of an institution here in Iowa, but Democrats are hoping to use his refusal to hold a Senate hearing on President Obama’s Supreme Court nominee against him,” Iowa pollster Christopher Budzisz said. Grassley’s support seems to have stabilized as the summer has worn on, and he does not seem seriously at risk. But it was still a scare for him. Meanwhile, polls in six key swing states show that 60 percent of voters there support a hearing for Garland.
As Grassley and his fellow Senators finish their August recess and head back to Washington, DC, for a final burst of fall activity, they will face a renewed push for a hearing on Garland. Supreme Court nominees are like major movie stars, even in the fever swamps of the Capitol on the verge of a presidential election: they draw focus. Whatever the voters’ concerns—from abortion to the environment, immigration to voting rights—the Court looms as a key player. Senate Democrats and the White House hope for cracks in the Republican blockade. But Merrick Garland’s 150-day star turn won’t change the box office when forty years of work reshaping the Court are at stake.
No one is going to budge until November. The real question now is whether the Republicans will relent and confirm Garland in a lame duck session in December if Hillary Clinton wins the presidency. The Republican leadership is playing coy on this right now. But everyone knows the end of the year is when Oscar-worthy performances are given. Garland was always better-suited for prestige drama. There may be plenty of weeping as Republicans come face-to-face with the loss of a conservative Supreme Court majority. Will the Senate finally give Garland his chance in the spotlight then?