The Bruising Battle To Come

Justice Anthony Kennedy’s concurrence in Trump v. Hawaii turned out to be a kind of farewell message from the longtime jurist, who announced his retirement yesterday after the end of the Supreme Court’s term.  His call for care and adherence to constitutional principles in the statements and actions of government officials in that concurrence has a special resonance now, as the nation moves forward into what will undoubtedly be a bruising battle over the nomination of his successor.

1200px-ussupremecourtwestfacadeThese days, every Supreme Court nomination is a huge event, but the replacement of Justice Kennedy is a special moment.  He has long been seen as the crucial “swing” vote in important, hotly contested cases that ultimately were decided by a 5-4 margin, and a centrist who might side with the liberal position in one case and the conservative position in another.  As a result, Republicans see the nomination of his replacement as a chance to reorient the Court, eliminate the “swing,” and lock in a predictably conservative majority — which is exactly what Democrats fear.  And who can blame them?  These days, with Congress often rendered inert by infighting and inability to compromise and the Executive Branch governing by executive order, the Supreme Court is increasingly seen, and has increasingly acted, as the ultimate decider of all kinds of policy issues that used to be reserved for the political branches of government.

The upcoming confirmation process will not be a high-minded moment for our country.  With passions already at full boil, and with Democrats angered by fresh memories of the Senate Republicans’ refusal to consider the nomination of Merrick Garland in the last year of President Obama’s term and Republicans recalling the Senate Democrats’ use of the “nuclear option” when the Democrats were in the majority, we can expect a heated, partisan, no-holds-barred process.

This means that the nominee, whoever it is, will receive the most exacting examination imaginable.  You can be sure that every organization, position, and activity on the nominee’s resume, from college days forward, will be put under a microscope, and every word in every opinion the nominee has written will be inspected and weighed for signs of intrinsic bias that could be used to argue against confirmation.  Can a President who has lots of skeletons in his own personal closet, and who has struggled to identify qualified individuals to fill positions in his Administration, actually select a nominee who can withstand the spotlight that will be directed at everything he or she has done?  And how many potential nominees — and their families — will quail at the prospect of such personally intrusive, withering scrutiny?

It’s not going to be pretty, folks.

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Backseat Nuclear

Yesterday the Senate voted to change its rules to determine that a 60-vote supermajority requirement does not apply to Supreme Court nominations.  The decision means that it will no longer be possible to filibuster Supreme Court nominations, which now can be approved by a simple majority vote.  That reality, in turn, clears the way for Neil Gorsuch to take a seat on the nation’s highest court.

868d7f9c0a0d02b700028bdae62105edAlthough everybody has called the procedural change “the nuclear option,” this whole spiraling process has always struck me as less like a tense, world-threatening confrontation between countries equipped with atomic weapons and more like a dispute between two bored and bratty kids sitting in the back seat of the family car.  Things escalate, suddenly the kids are pushing and shoving and yelling while the parents in the front seat try to break things up and calm things down, and in the end each red-faced kid blames the other for starting it.

In this case, Republicans blame Democrats for being the first to exercise the nuclear option, and Democrats respond that Republican intransigence forced that decision.  Republicans blame Democrats for reflexively opposing President Trump’s nomination of Neil Gorsuch to the Supreme Court, despite his obvious qualifications, and Democrats respond that the Republicans’ refusal to even consider President Obama’s nomination of Merrick Garland, who also was qualified for the Supreme Court, is what created the current atmosphere.  You really wondered what the parties were going to do absent this procedural change — automatically oppose all Supreme Court nominations by the President of the opposing party until the Supreme Court itself has vanished through age and attrition?

During those grim family car trips, the squabbling kids calm down, the journey continues, and the parents breathe sighs of exasperation and then relief.  Is that going to happen here and — as the parents in this scenario — how are exasperated American voters going to react?  The filibuster was a means of preserving some modicum of power for the minority and of requiring at least a nod to civility and consensus-building, but it also was a self-imposed rule that allowed individual Senators to feel self-important.  If it’s gone, it means that Senatorial privileges have been reduced and that those depictions of the U.S. Senate as “the world’s greatest deliberative body” inhabited by statesman have been further undermined, because true statesmen, regardless of party, would never have allowed things to reach this embarrassing level.  

But, in this day and age, is anyone really surprised that the U.S. Senate is home to a bunch of partisan hacks, on both sides of the aisle, who have put party and interest groups ahead of the national interest?

Chickens, Meet Roost

Hang on to your hats, folks!  Yesterday, the new Congress was sworn in, and amidst the first-day activities — which featured an ill-considered effort by House Republicans to change the powers of an ethics investigative unit, that was abruptly reversed in the face of criticism from the media, Democrats, and Donald Trump — we started to get a sense of what might be coming in the next few months, after the new President is sworn in, too.

roostingchickensTwo things seem pretty clear.  First, President-elect Trump and the Republicans in Congress are serious about taking aim at some parts of President Obama’s agenda.  Second, some of the methods used by the Democrats over the last eight years to implement that agenda are now ready to be used by Republicans to reverse course.

For example, President Obama has been very active in setting policy through executive orders, rather than by obtaining changes through the congressional process.  In fact, the President is continuing to issue executive orders and probably will continue to do so until the Trump Administration takes office.  Similarly, the Obama Administration has issued regulatory guidance that changes the prevailing approach in a number of areas.  But what can be achieved through executive orders also can be undone by executive orders, and the Trump Administration has indicated that it plans to do precisely that.

In short, because President Obama was unable to convince Congress to enact many of his policy initiatives, those initiatives are ready to be changed at the stroke of a pen.  President Obama recognizes this; in fact, he recently urged Trump to try to govern through legislation, rather than executive order, for this very reason.  Republicans said President Obama’s advice against overuse of executive orders was “ironic,” but in any case it is clear that many of his executive orders are going to be reversed when President Trump takes office.  We don’t know yet exactly how extensive the changes will be, but don’t be surprised if the coverage of Trump’s first day in office includes footage of him signing a series of executive orders to change Obama Administration policies.

You’ll also recall that, during the Obama Administration, the Democrats who controlled the Senate exercised the “nuclear option” and changed certain internal rules about how many votes were needed to overcome filibusters.  Now New York Senator Chuck Schumer, the new head of Senate Democrats, regrets that the Democrats took that action — because it will make it tougher for Democrats to oppose and block confirmation of Trump’s selections for positions in his Cabinet.

It’s all pretty predictable.  You can think about chickens coming home to roost, sauce for the goose and sauce for the gander, and what goes around coming around — but the reality is that, with the pendulum swings we’ve seen in voting for President and for the Congress, anything that isn’t enacted into law through the legislative process contemplated by the Constitution will be immediately subject to change when the power shifts again, and that every procedural maneuver used to further one side’s agenda will be hauled out and used anew when the other side takes over.

It’s not a good way to govern.