Since Nino Scalia’s demise on Saturday, the Republicans have been adamant that Barack Obama should not nominate someone to succeed him, and that if he did they would simply not hold hearings for the candidate, thus leaving the seat open until a new president is inaugurated next January. While this is on the surface ridiculous–Obama’s the president until noon on January 20th, 2017 and has every right and duty to fill a Supreme Court seat until then–it’s also the first time such intense political pressure was brought to the issue of a Supreme Court vacancy itself rather than over the qualifications of a nominee.
While nominees have been rejected before (See Bork, Robert), they were given hearings and grilled on their legal views. What the GOP is promising here is a preemptive nuke against the very idea that the president has the right to nominate someone to the court–which is as fundamental a rejection of the constitution as you can get.
But there’s a precedent here. In November 1987, after the failed nominations of Robert Bork (defeated 58-42 in the senate) and Douglas Ginsburg (withdrawn after admitting he smoked marijuana–it was a simpler time back then), Ronald Reagan nominated Anthony Kennedy to the court. In his announcement, Reagan stressed that he hoped for confirmation quickly in a bipartisan manner, and added that Kennedy “seems to be popular with many senators of various political persuasions.”
Linda Greenhouse, the longtime New York Times Supreme Court reporter, immediately wrote that there was a strong expectation that Kennedy would be approved, “as well as collective relief that another bruising battle could probably be avoided.”
The opposing party, the Democrats, generally agreed. Joe Biden, then chair of the Judiciary Committee, admitted at once, “quite frankly, unless something happens that I’m not aware of, we will be able to move pretty swiftly.” Laurence Tribe, liberal judicial icon and Biden’s advisor on court matters, was relieved to see Kennedy nominated–“his opinions are more sensitive than strident. He replaces the dogmatism of Robert Bork with a sense of decency and moderation.”
In fact, the strongest criticism of Reagan’s pick came from his own party, because Kennedy wasn’t conservative enough for them. Charles Grassley, who’s currently lobbing grenades at the White House on the issue of Obama choosing a successor to Scalia, was upset over a “basic compromise of principle” but added “I’m resigned. There’s a practical aspect.”
Since the senate was about to go into recess for the holidays, the hearings were scheduled for February, 1988, at roughly the same time as the primaries for that year’s election began. While George H.W. Bush, Reagan’s Veep, was considered a lock for the GOP nomination, there weren’t great odds on being elected in November, as Reagan–amid the Iran-Contra scandal–had finished his second term with declining popularity numbers.
The Democrats, with their eye on what seemed to be a winnable race (in fact, their candidate, Michael Dukakis, held double-digit leads on Bush throughout the summer of 1988) never even hinted that they’d delay a vote and leave the seat open so that Dukakis, with a Democratic Senate, would be able to make a different pick. Yet even Grassley saw the “practical aspect” to the situation–a nominee would be forthcoming and be confirmed.
While it’s not surprising that today’s GOP would begin demanding that no nomination be made even before the possibility that Scalia hadn’t arrived in hell yet, the media response has been terrifying. The liberal icons–the Grey Lady and WaPo in particular–are reporting on a coming constitutional struggle and reporting on the Republican’s bullying as if it’s a legitimate political tactic. Ross Douthat, the Times token op-ed conservative, toed the GOP line in a cringe-inducing column that should never have been allowed to be published. Framing this as a “debate” over senate rules, as a friend who’s an outstanding attorney pointed out, was like the “debate” over waterboarding that consumed the media for so long.
Obama’s never been a courageous politician, but he’s vowed to announce a nomination and call the GOP bluff. It’s more than 50-percent likely that the Senate won’t hear or confirm the nominee, but it’s also likely to be a big Democratic asset in the election year.
But it’s also unprecedented, as the politics of the Anthony Kennedy nomination show. If anyone should doubt that U.S. political society has reached dangerous new lows, the GOP’s threats, and even more the media’s gentle handling of them, should sound the alarm bells.