Nightmare Scenarios for the Supreme Court

The partisan rancor in the Senate might be even worse than you think.

Senate Majority Leader Mitch McConnell at the U.S. Capitol, Dec. 15, 2015 in Washington, D.C.

Chip Somodevilla/Getty Images

In light of the coming battle in the Senate over Barack Obama’s nominee to replace Antonin Scalia, I called Norm Ornstein, a resident scholar at the American Enterprise Institute, an expert on the workings of Congress, and the co-author of It’s Even Worse Than It Looks: How The American Constitutional System Collided With The New Politics of Extremism.

We discussed the future of the Supreme Court, the different types of obstructionism practiced by Republicans and Democrats, and the nightmare scenarios (another court packing!) that could be in our future. The conversation has been edited and condensed.

Isaac Chotiner: Is the Republican demand that the next president, rather than Obama, appoint a replacement for Scalia really that different from other forms of obstruction we have seen from both parties?

Norm Ornstein: This is different. This is very different from what we’ve seen before in a whole host of ways. We’ve had highly partisan, highly ideological, very rough confirmation battles. You could go back to Clement Haynsworth and Harrold Carswell under Nixon. With Carswell it was entirely appropriate. He was not a smart man, and he was a bigot.

That’s nice.

Carswell was basically a Nixon middle finger at Democrats in the Senate. Haynsworth was a quite distinguished judge who got labeled with some scandals that were significantly overstated. That was the beginning of a struggle that became more partisan. It was outside the norms, but not horribly so. You had the hearings. You had deliberative periods. You ended up with votes on the Senate floor.

Norman Ornstein
Norm Ornstein.

American Enterprise Institute

You can segue forward from there to the next big blow-up, which was of course Bork. That changed attitudes, bruised feelings, created a sense of “we’ll stick it to them too.” Here again what you had was an open set of hearings, and very rough testimony. I thought in some cases it went over the line, but there was a vote. I think it’s also interesting because, of course, Bork followed Scalia. The speculation at the time was, and I think probably accurately so, that if Bork had been nominated before Scalia he might well have made it. That it was the sense of going from one very sharply ideological conservative to the second one that probably doomed him. It changed the nomination process to a much more public partisan political dispute, which we hadn’t seen very much before.

So then explain why this is so different.

In every previous instance, including ones where they had played hardball—and that’s been true on both sides—you had somebody nominated. You had hearings held in the Senate Judiciary Committee. You had an up or down vote. You had the process followed and it wasn’t a sham. It really was a genuine “we’re going to go through this and then we’re going to cast a vote.” In instances where there could’ve been filibusters there weren’t. You had a very closely divided situation like Clarence Thomas, but you had justices confirmed. The idea that within an hour of the word coming down that Scalia was dead the majority leader of the Senate would basically say, with a year to go, that there shouldn’t even be a nomination breaks all the norms.

There are several arguments Republicans make in response. One is that they have nominated judges, if not Supreme Court justices, like Miguel Estrada, who didn’t get a vote when George W. Bush nominated him to the D.C. Circuit, a possible stepping stone to the Supreme Court.

I’ve written in the past that I thought the Democrats made a huge mistake with Estrada because he was, by any standard, qualified. Instead of Estrada, who was very conservative, they ended up with Alito, who is much more so. It was a mistake with Estrada, but, of course, after that you had another nominee put forward who was confirmed.

The other argument is that Harry Reid or Chuck Schumer would be doing exactly what Mitch McConnell is doing.

I think if Bush had nominated to replace Ginsburg somebody as conservative as Alito they might not have allowed a vote. I also believe that if that had happened and Bush had nominated somebody who is not clearly rigid in judicial philosophy, I think they would’ve had a vote. I can’t say for sure that the vote would’ve been a positive one. I think it’s entirely possible that under those circumstances Democrats would’ve voted against somebody. I’d be quite confident believing that they would bring it to a vote. Now, it’s quite possible we’re going to get a vote here.

Really? It surprises me that you think that.

I think they’re being beaten up so much on this idea that you’re not even allowing hearings during what will be the longest stretch ever [for] a Supreme Court vacancy. Now, you’re seeing Charles Grassley backtracking a little bit on the hearings. But the vote in this case would be a sham. They’re not going to bring it up unless they’re quite confident that it will go down.

Until this moment how would you compare the way Republicans in the Senate have treated Obama judicial nominees versus Democrats in the Senate with Bush judicial nominees?

I would say if you look at the arc of George Herbert Walker Bush, Bill Clinton, George W. Bush, and Barack Obama you’ve seen an escalation. It was worse in the final two years for Clinton with Republicans in the Senate. It was not great for George W. Bush, but it was better. Democrats gave him more opportunities with district and appeals court judges, especially the appeals court. It’s gotten significantly worse with Obama. It was basically Republicans saying, with several vacancies in the D.C. Circuit, which at that point had a Republican-appointed majority and is the most significant circuit, “we’re not going to fill any of those seats.” Obama put forward people who were very moderate with enormously impressive credentials and the Republicans basically said: We don’t care who’s nominated by the president. We don’t care how qualified they are; none of them are going through.

And Democrats never did something equivalent with Bush?

No, they did not. They’d block individual nominees that were then followed by others who got confirmed. They did slow-walk a lot of stuff in the final year of the Bush administration, just as we’ve seen with appeals court nominees now. Not quite as many in number, but it’s still the same phenomenon.

Do you blame McConnell for all this?

It’s not just McConnell. It’s a lot of Republicans in the Senate. Also to some degree I blame Obama. The reason I blame Obama is that when he first became President in 2009 he was very slow picking judicial nominees, very slow, and lost a lot of traction as time passed.

Why was Obama so slow?

I don’t have a great answer to that one. Some of it may rest with the office that didn’t move aggressively to give him the nominees’ potential names. Some of it may be that as a new president who hadn’t been in the executive branch before it wasn’t on his radar screen. It wasn’t a top priority. It puzzles me a lot. He probably would’ve gotten some more done if he’d acted earlier.

So why do you think fighting over judicial nominees has become so fraught? Does it go beyond mere partisan rancor?

As the laws that pass Congress tended to be vaguer in nature—because that is the only way you can build the coalitions—they would pass a lot of the buck on to the courts. The courts were perfectly happy to intervene, or in some cases had to intervene. It became increasingly clear to political actors that majorities in Congress could come and go. Presidencies could come and go. Judges would stay on for a much longer period of time. We saw a whole set of changes including the kinds of people nominated for judgeships by presidents. They wanted to make sure they were very predictable, no great surprises. It became even truer with Republicans as the Federalist Society emerged and saw this as their opportunity to dramatically alter policy in the country.

Starting with Clinton, who nominated a bunch of people who by every standard were moderate, the Republicans began to look at this as slots. They wanted to delay and obstruct as much as they could because they wanted to keep the slots for their president. They were quite effective in that. Of course, we got a lot of judges then that came through with Bush.

Give me the nightmare scenario here. Let’s say the Republicans push this off until the next president is elected. Let’s say it’s a Republican president who comes in, but the Democrats take back the Senate. How obstructionist do you then think the Democrats are going to be? Would they spend years blocking a nomination?

What I think would happen under those circumstances is that Democrats in the Senate would say to whoever that president is, “If you nominate another Scalia or somebody who’s more radical than Scalia that’s a nonstarter. We’ll either not bring it up or we’ll vote him down. If you want to nominate somebody who is a moderate then we can talk.”

 So how pessimistic are you about things getting even worse than they are now?

There’s a reason why I titled our book’s first edition It’s Even Worse Than It Looks and the new edition It’s Even Worse Than It Was. The tribal wars are getting sharper and you’re getting an ideological division combined with that tribal warfare.

Another scenario for you: Republicans control Congress and the White House. If they’re looking ahead and feeling that the presidency is going to slip away from them because of demographic imperatives, you could see a set of circumstances where you get another court-packing dispute. We’ve got the chance. We have all three branches. Let’s enlarge the court.

Read more Slate coverage of Antonin Scalia.