An Unending Vacancy: A Casualty of Senate Partisanship

By Dante Bucci, Contributing Writer

For almost an entire year, the United States Supreme Court has not been filled to capacity. Since the death of Justice Antonin Scalia, the highest judicial body in the country has been unable to hear cases and offer rulings with the interpretation of nine separate Justices. It was also on that date, February 13, 2016, that the Court became the latest victim of the growing trend of partisan senatorial gamesmanship.

Though the delay was considered unprecedented from the very beginning, the (in)action of Republican Senate leadership was not surprising. For about fourteen years now, this supposed august body of legislators has descended from the epitome of gentlemanly clubbiness to become a focal point for partisan kneejerk decisions. Now of course, politics is not a game of courtesy. There was a time though when the Senate operated under a system built on decorum and mutual respect. Members of Leadership once publicly complimented each other. Bob Dole even described his one-time Leadership counterpart Bob Byrd as a “friend.” This seems unheard-of today.

A recent string of “firsts” in regards to rules, procedures, and traditions within the body is worth noting. Decisions made by Senate Leadership, going all the way back to 2004, have contributed greatly to this increase in beltway partisanship. And now, after the Merrick Garland situation last year, a “nuclear option” might be on the table for Senate Republicans. Just as then-Majority Leader Harry Reid decided to gut the procedures on appointments, Majority Leader Mitch McConnell might be pressured to eliminate the filibuster for Supreme Court nominees as well.

The untimely death of Justice Antonin Scalia last year changed the makeup of the Supreme Court. The Justice was truly a larger than life character, so it is only fitting that his death sparked a larger than life battle between a “lame-duck President” and the U.S. Senate. In a rather unique method of paying his respects, Mitch McConnell announced that the Senate would not take up anyone President Obama might appoint to fill the Scalia vacancy. This was not just a call to vote against the President’s nominee nor was it an organized effort to fail this person in committee. McConnell simply rejected Obama’s ability to appoint a new Justice to the Supreme Court.

McConnell rationalized that because the 44th President’s term was nearly complete and the election of the next Commander-in-Chief was underway, the Senate should remain in a holding pattern so the next President could fill the vacancy. Actually Obama’s term was 343 days away from ending, but I guess that’s just semantics. This was a tremendous gamble for the Majority Leader, as he bet the farm that a Republican was going to retake the White House. He lucked out.

The legislative path Mitch McConnell took in order to reach this point was a difficult one. He had to convince his caucus that a duly elected President with the Constitutional right to appoint a new Justice forfeited that right because his expiration date was coming up. When President Obama called the GOP bluff last March and nominated Judge Merrick Garland, Senate leadership held firm. Even though some Republican members of Congress said Garland should at least get a hearing in committee, McConnell categorically refused and Merrick Garland has faded into political oblivion.

This was a dangerous strategy, and it harmed the integrity of the Senate and the Court. Going a year plus without a member of the Supreme Court has only occurred one time in the past 140 years. But the fact remains that Mitch McConnell’s thinking directly stems from a recent trend of outward partisanship that culminated in this prolonged vacancy. This has been growing for some time.

The first act in this recent string of unnecessarily partisan breaches of tradition can be traced back to 2004. Bill Frist was Majority Leader of the Senate at the time. In that election year, then Minority Leader Tom Daschle was seeking his fourth Senate term. In a highly unusual breach of tradition, Bill Frist went to South Dakota to campaign for the candidate running against his leadership colleague. Yes, this may seem like a non-issue today, but this action by Frist was taboo. Opposing members of Senate leadership tended to stay away from their counterpart’s elections out of respect. Daschle lost in a tight race, and the damage was done. The seeds of disrespect were planted and this breach of tradition started the unraveling. These actions were not forgotten by their successors.

More recently, since Harry Reid and Mitch McConnell took over their respective Leadership posts, the respect has completely disappeared and reached a boiling point. Both men have talked a big game in regards to upholding Senate traditions, but then conveniently forget about them when they stand in their way. In 2013, in a historic and devastating change of Senate procedure, Harry Reid pushed through a measure to nullify the filibuster for all Presidential appointees except for ones to the Supreme Court. In layman's terms, there no longer needed to be bipartisan support for Presidential appointments. Only a simple majority was needed to confirm nominees. Convenient, but debilitating for future attempts at compromise. Reid was thinking in the short term: let’s just get whomever President Obama wants in there. However, Senate Democrats are paying the price for this kneejerk decision currently as President Trump has the opportunity to appoint whomever he pleases to whatever position he wants. Qualifications and compromise has given way to a partisan appointment process that only further deepens the Washington political chasm we currently live in.

Now, with President Trump nominating Judge Neil Gorsuch of Colorado to fill this unending SCOTUS vacancy, the partisan infighting has the capacity to go nuclear. Before Trump’s announcement of Gorsuch, Senate Democrats were threatening to filibuster any Trump appointment to the Court. Newly minted Minority Leader Chuck Schumer decided to play McConnell’s game and indicated he would not support anyone the President would nominate. Because of the opposition, McConnell has the opportunity to change the rules just as Reid did. This would be short sighted and convenient in the moment but very costly, as we are learning now through the Trump Cabinet appointment process. So, the question is, how far will Leadership go in order to pursue short-term victories in replace of long-term success? Not only that, but these procedural changes further poison another branch of the federal government with partisan infighting.   

By all accounts, Judge Neil Gorsuch of the 10th Circuit Court of Appeals checks off all the boxes President Trump searched for in a nominee. When Trump was running for the Presidency, he indicated he would appoint someone in the mold of Justice Scalia in an attempt to preserve a conservative legacy. As a Republican, I am rather excited about this possibility. But at what costs did we reach this point? Even though McConnell’s strategy worked, the ends do not justify the means. It seems that Neil Gorsuch will be successfully appointed with the Senate’s blessing, but what about future Supreme Court appointments? What about when a Democratic President joins with a Democratic Senate with a bare majority to appoint a new justice in the mold of Justice Ruth Bader Ginsburg? This threat is not going away, as the precedent has been set. Will Mitch McConnell, or future members of Senate Leadership, further ruin the Madisonian ideal of a strong minority party by again changing the 60 vote threshold? In a body that once prided itself on arduously hashing out quality decisions with mutual understanding, the current crop of leaders have tarnished this legacy for the sake of political convenience.