Strangling the Supreme Court in a Bathtub

Maybe Ilya Shapiro over at The Federalist is just desperate for attention. I don’t know. But he’s advancing an idea that probably will be taken fairly seriously in conservative circles come next year. Shapiro says that it would be “in keeping with the Senate’s constitutional duty to vote against essentially every judicial nominee [President Clinton] names.” He also says “if a majority of senators refused to confirm anyone to any offices, or pass any legislation whatsoever, that’s their prerogative. As a matter of constitutional law, the Senate is fully within its powers to let the Supreme Court die out, literally.”

Shapiro doesn’t parse the difference between blocking nominations and bills with a majority versus with a minority (via the filibuster), but he’s surely right that the Constitution doesn’t require elected officials to vote for anyone or anything.

Of course, President Obama nominated Merrick Garland to the Supreme Court many months ago and no one has cast a single vote for or against him, even procedurally. It’s uncontroversial that senators can vote against a nominee. It’s understood that the filibuster is an established device that can be used by a minority in the Senate to block a vote. What’s controversial is the idea that committee chairmen would deny nominees a hearing and at least a vote in committee on whether to recommend those nominees to the full Senate.

Shapiro isn’t saying that Garland or all of Clinton’s nominees are morally unfit to serve. He’s saying that they’ll rule in a way that he doesn’t like.

I think we’re talking norms here rather than about what the Constitution explicitly requires. It seems like the idea of letting “the Supreme Court die out, literally” is a good place to examine this question. If, for some reason, a political party decided to never confirm anyone new to the Supreme Court, eventually it would have no members. They could also refuse to appropriate any money to the Supreme Court and kill it that way. I think it’s fair to say that the Constitution implies that this should not be done. But, of course, the Supreme Court has no obvious way to defend itself from these kinds of attacks. The Executive Branch can veto any spending bills that don’t fund the judiciary, but they can’t force the Congress to keep the government open and funded.

It’s ultimately up to the voters to replace a party that wants to behave this way. And I think that’s what they’d do.

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Martin Longman

Martin Longman is the web editor for the Washington Monthly. See all his writing at ProgressPond.com