Skip to content

The Supreme Court and the Precedents of Pettiness

Schumer, D-N.Y. during a rally demanding that Senate Republicans give a Supreme Court nominee a hearing and vote. (Photo By Al Drago/CQ Roll Call)
Schumer, D-N.Y. during a rally demanding that Senate Republicans give a Supreme Court nominee a hearing and vote. (Photo By Al Drago/CQ Roll Call)

The fight over a successor to the late Supreme Court Justice Antonin Scalia is emblematic of much that is wrong with official Washington. It’s petty, it’s partisan and, most of all, it’s indicative of a race-to-the-bottom political culture that weakens our institutions and, ultimately, our system of governance.  

To recap: Within hours of Scalia’s death, Senate Majority Leader Mitch McConnell declared that it would be wrong for President Barack Obama to exercise his constitutional right to name a successor. Democrats quickly started hurling political rocks at Republicans and predicting that any attempt to obstruct an Obama appointee would end in political ruin for the GOP in the 2016 election.  

The Democrats appear to have forgotten that they live in a house constructed of glass trophies awarded for their own efforts to block judges. From Ted Kennedy’s disgraceful character assassination of Robert Bork in the 1980s to the defeat-by-filibuster of appointees to lower federal benches during the early 2000s, Senate Democrats have certainly flexed their blocking muscles.

Courtesy of the C-SPAN archives, there’s even video of Vice President Joe Biden, chairman of the Judiciary Committee in 1992, arguing that President George H.W. Bush should not name a Supreme Court nominee during his final year in office and that the Judiciary Committee should not hold hearings on appointee if he did.  

Now, Republicans are arming themselves with such precedents to suggest that what they’re doing isn’t really out of the ordinary. And no one can dispute that it is up to the Senate majority whether to consider a presidential nomination to the high court or any other office. But only someone living inside the Beltway — or constituents suffering from Stockholm Syndrome — could look at what’s going on right now and think it’s not extraordinary.  

Our system depends on norms and civility — the decisions by individual players to sometimes do what’s in the best interests of our institutions — or it all falls apart. We’re all called upon to play a part in our system. Voters must go to the polls to elect the president and the members of Congress. The executive and legislative branches must work together to make policy. The president must appoint, and, short of scandalous behavior or incompetence on the part of the nominee, the Senate is called on to consent to presidential nominations.  

Sure, there are ways to frustrate those guiding principles all along the way. And those who hold political power are expected, in our system, to push the boundaries. The limit is usually what the American public will bear. And in our polarized partisan times, the incentives are usually to dig deeper trenches. That’s what rallies the base and raises money. And surely McConnell’s constituents — at least the ones who fund campaigns — don’t want him to roll over.  

There’s little incentive for him — or for the Democrats when they are in power — to accede to the agenda or nominations of a president of the other party. That won’t change until voters start punishing lawmakers for paying more attention to the demands of the partisan fringes than to making sure the government operates effectively and efficiently.  

Most of the debate so far has centered around precedent — who did what to whom and in which year of the distant past. In Washington, the precedents of pettiness and partisanship justify even more pettiness and partisanship. That self-sustaining cycle shouldn’t make any of us proud of the state of our republic. But we all encourage it by not asking our leaders for more — not demanding that they rise above and take a risk now and again in the interest of strengthening our system rather than weakening it.  

So, maybe the public deserves nothing more than the 4-4 court it seems sure to have at least until sometime in 2017, and maybe Americans deserve a government that is hopelessly stalemated along partisan lines, and maybe voters and donors deserve to get whipped up every two and four years to support candidates who will come to Washington and do everything they can to test the stability of the foundations of our government.  

But good leaders will give us more than we deserve. And while I’m not holding my breath on this nomination — or any that a new Republican or Democratic president would make — perhaps voters, over time, will demand that they get a little more leadership and a little less followership out of Washington.  

Roll Call columnist Jonathan Allen is head of community and content for Sidewire and a co-author of the New York Times-bestselling book “HRC: State Secrets and the Rebirth of Hillary Clinton.” He and co-author Amie Parnes are working on a follow-up book about the 2016 election. Follow him on Twitter at @JonAllenDC


See photos, follies, HOH Hits and Misses and more at Roll Call’s new video site.

NEW! Download the Roll Call app for the best coverage of people, politics and personalities of Capitol Hill.

Recent Stories

Five races to watch in Pennsylvania primaries on Tuesday

‘You talk too much’— Congressional Hits and Misses

Senators seek changes to spy program reauthorization bill

Editor’s Note: Congress and the coalition-curious

Photos of the week ending April 19, 2024

Rule for emergency aid bill adopted with Democratic support