Justice, Supreme Court

Senate Republicans Are Killing The Supreme Court And Nobody Will Stop Them

They've already stalled the nominating process for the longest time in history, what does it cost them to drag it out two more years if Hillary wins?

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An empty, frozen Supreme Court is what the Senate Republicans want to see. (Photo by Drew Havens)

An empty, frozen Supreme Court is what the Senate Republicans want to see. (Photo by Drew Havens)

Last night, John McCain admitted something that I’ve been arguing about for months: The Senate Republicans have no intention of confirming a Hillary Clinton Supreme Court appointment. Speaking on the radio in support of Republican Senator Pat Toomey, McCain said:

“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.”

McCain later walked that statement back, saying that he would “thoroughly examine the record” of any nominee and “vote for or against that individual based on their qualifications.” We know that is a LIE because McCain RIGHT NOW has a nominee in front of him that he has not examined, will not meet, and will not ask his colleagues to take a vote on said nominee. McCain just told you want he intends to do, and tried to walk it back by actively lying about what he is doing right now. Country first my ass.

Guys, this is a constitutional crisis unfolding in plain sight. The Republicans are exploiting a loophole in the Constitution that allows them to obstruct the third branch of government. This isn’t really a battle between the Congress and the Executive office. This is a decision, made by Congress, that they no longer require the Supreme Court to exist as a reasonable check on their actions.

People forget just how tenuous the Supreme Court’s power really is. The Constitution says that we should have a Supreme Court, but it is largely silent about what the Court is supposed to do. Remember, its grand power to interpret the Constitution and strike down laws is ENTIRELY MADE UP. That’s not in the Constitution. The Constitution doesn’t even specify how many justices should be on the damn thing. The Supreme Court has power entirely by convention. By our gentleman’s agreement, we let nine people who have no army and no constituents decide matters of legal dispute.

Why can’t it be eight justices? Why can’t it be two? Why can’t Congress give itself the power to figure out if laws are “constitutional,” while the Court sits on First Street denying clemency to people on death row? The Constitution doesn’t care. Right now, Senate Republicans are acting like college freshmen who are just figuring out that Mom isn’t around to stop them from drinking tequila out of a stripper’s belly button.

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The only Constitutional check on Republican shenanigans with the Court are the voters. And the voters have shown that they do not GIVE ONE SOLITARY SCREW about the “proper” functioning of the Supreme Court. If anything, the Republican base is applauding the crisis Republicans have created, because they are still bummed out that gay people have to be treated with dignity and respect. “Undecided” voters, those low-information beacons of apathy, think that this is just “politics as usual.” They have no clue that Senate Republicans have taken an unprecedented shot at our system of checks and balances.

Then there’s the Clinton campaign, which hasn’t made a huge deal of the Republican obstructionism, probably because they realize that movement conservatives will go to the mat for the Supreme Court, while Bernie supporters take for granted the choices that were fought for in the “before times,” when music cost money and abortions were done with sharp pieces of flint.

If voters don’t punish Republicans for this (and they’re not), and Republicans hold onto the Senate, why would they EVER give a Clinton nominee a vote? To be nice? Because they believe in government? Remember, conservatives are getting two key things by hobbling the Court in this way:

1. A divided Court can’t do much. While Republicans like activist courts just fine when they take control of women’s bodies or deny people health care, true movement conservatives want the Court to do very little. Those people are getting their wish when the Court has to nibble around the edges of the cases and controversies on which they think there is broad based consensus.

2. Ties go to the circuit courts. I think it’s stupid to have the federal law change radically based on what side of an arbitrary line you happen to be in when it comes time to buy a wedding cake. But Federalists LOVE that stuff. IT’S WHY THEY EXIST. The Supreme Court is supposed to fix circuit court splits, but a lot of conservatives are just fine having one set of federal law apply to Texas and a completely different set apply to California.

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And that’s just the Senate Republican calculus before Trump TV goes live to tell all the “I want my country back” racists that Republicans who compromise on the Supreme Court are TRAITORS TO AMERICA. Trump’s voters aren’t going anywhere, they certainly aren’t learning anything, and Senate Republicans can’t win without them.

They’ve already stalled the nominating process for the longest time in history… what does it cost them to drag it out two more years if Hillary wins? Remember, in 2018, the Democrats are defending a lot of Senate seats in very Republican states. President Hillary Clinton will be unpopular because she’s a girl and it seems like Trump is the only Republican who could lose to a girl. After the ’18 midterms, Senate Majority Leader Mitch McConnell could be looking at a super majority and an unpopular Clinton will have no ability to shame them. And once we get to ’18, according to Republican rules, the President is a “lame duck,” and they’ll hold the seat open — hell, maybe two seats open by that time — for President Paul Ryan in 2020.

The only person who could have stopped the Republicans from doing this is Chief Justice John Roberts, and he doesn’t seem to care. If the Chief Justice had come out, as soon as Scalia died, and told Republicans, “NO. Don’t do this. You are hurting the Court,” maybe some of the reasonable Republicans would have broken ranks. Maybe some voters would care if the Chief Justice said, against party politics, that the functioning of the Supreme Court was more important than the partisan divide.

Roberts’s silence will be a black mark against his legacy. It was his opportunity to really elevate himself into the conversation of the greatest justices ever… the ones who left a lasting mark on the institution of the Court. Instead, Roberts has been small in this moment. One side has taken its balls and gone home, and Umpire in Chief Roberts is sitting behind the plate, unwilling to call the game a forfeit.

Left to their own devices, without rebuke from the Chief or retribution from the voters, the Senate Republicans are KILLING the Supreme Court. They’re doing it right in front of our eyes. And nobody on the right has the dignity to tell them to stop.

Sen. McCain Says Republicans Will Block All Court Nominations If Clinton Wins [NPR]

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. PLEASE CARE ABOUT THIS YOU FREAKING SWING-STATE VOTERS!

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