This week, Donald Trump announced his nominee to fill the Supreme Court vacancy that arose after Justice Antonin Scalia’s death during President Obama’s second term in office. The nomination is the result of stolen goods that Senate Republicans housed for ten months and then giftwrapped for Trump upon taking office. The coming Supreme Court fight is thus a bridge between the radical insurgent GOP of the Obama years to the vengeful and autocratic Trump regime taking shape—a fight that, for good or ill, will bind Trump and the GOP more than ever.
On March 16, 2016, President Obama nominated Merrick Garland to fill the Supreme Court seat vacated after Justice Scalia’s death. Garland was the widely respected, long serving Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, the second highest court in the land. An ideological moderate, Garland had previously gained acclaim from influential senators on both sides of the aisle.
The Republican-controlled Senate refused to even hold a hearing or give Judge Garland an opportunity to make his case. Instead, the Senate kept the vacancy open, denying Obama his constitutional prerogative to appoint a justice, and held onto the seat on the off-chance a Republican won the presidency in 2016. This was an unprecedented abdication of the Senate’s constitutional duty to advise and consent upon the president’s nominee.
So the vacancy that Trump is now filling is the result of plunder committed by the GOP against the country’s first black president. And that plunder was the culmination of a relentless effort to brand that president as illegitimate. As Obama took office in 2009, Senate Republicans cast into minority opposition seized on their base’s fear and revulsion to Obama’s politics and identity and molded it into a legislative strategy. Senate Republican leader Mitch McConnell vowed total resistance to the president’s supposed radical socialist agenda. McConnell sought to deny Obama any stamp of bipartisanship, sullying the president’s popularity and lifting the Republicans’ chances to reclaim majority status in Congress.
Congressional Republicans did the work of tarring Obama as an ideological outsider. Meanwhile, Trump was busy stoking fears of Obama as an ethnic outsider with a fraudulent birth certificate. This all served to cement fear and paranoia in the minds of GOP voters that the White House was in illegitimate hands—even though that president was twice elected with a popular vote majority free of any foreign or law enforcement interference. The Republican Senate’s theft of Obama’s last Supreme Court nominee was the final malfeasant act of eight years of delegitimization.
That is the legacy of Trump’s Supreme Court inheritance: one of theft and deceit. The process for filling a seat on the country’s highest court is no longer governed by law or custom—and certainly not by the Constitution—but instead by raw power. The operative principle now is that if Republicans have the power to deny a Democratic president a Supreme Court pick, they will do so. It’s about power and nothing more. Any other claimed principles—about letting the people have a say in the presidential election, etc.—are backward-manufactured rationales to justify a power grab.
Senate Democrats must now decide how to react. Rightfully furious about their Republican colleagues’ egregious mistreatment of Garland, many are predisposed and ready to side with the demands of the party’s base to resist Trump at every turn. Other Democrats worry about being blinded by rage and tripping into a fight that the party simply cannot win.
It’s true, Democrats will ultimately lose this nomination fight. The left must understand the brutal math. But that’s beside the point. If Democrats think Senate Republicans will hesitate to nuke the filibuster on the next Supreme Court nomination if Democrats let this one go, they are deluding themselves.
This Court battle is not about the merits of the nominee. And Democrats cannot to take the high road in a doomed attempt to save Supreme Court nominations from becoming a partisan race to the bottom. Republicans are already running that race, and made clear with their treatment of Garland that the Supreme Court is no different from any other political contest. Democrats have no choice but to engage in this fight or else make Supreme Court vacancies a one-way rightward ratchet where Democrats play by an old set of rules and norms that Republicans systematically obliterate.
If Democrats need a principle to justify fighting Trump’s nomination, here’s one: appointments should be required to get support from each party. It’s hardly an unreasonable position—after all, Elena Kagan and Sonia Sotomayor both attracted bipartisan support. And it wasn’t that long ago that Justice Ruth Bader Ginsburg was confirmed by the Senate 96-3. This would call for a widely-approved consensus nominee—someone in the mold of, say… Merrick Garland, of whom Republican Senator Orrin Hatch once said would be a “consensus nominee” who had “no question” of being confirmed.
But here we are. One way or another, Donald Trump, a popular-vote loser of dubious electoral legitimacy and of whom a growing majority of Americans disapprove, will fill the Supreme Court seat heisted by Senate Republicans from Barack Obama. This joint operation binds Trump and the GOP closer than ever, as Republican senators gush over the credentials and qualifications of his pick, seemingly oblivious to the impeccable credentials and qualifications of the man they spurned, Merrick Garland.
This linkage is about more than just a single Supreme Court confirmation, however. There is a direct line from a conservatism that once sought small government to one that increasingly vilified government—that sowed distrust in institutions and then actively worked to weaken those institutions, creating the vacuum of authority that is ripe for Trumpism. For an ideology that once prided itself on restraint, respect for tradition, and deference to preexisting institutions, conservatism has clearly lost it way. When followed to its extreme, the endpoint of conservatism is Trump. It is eminently possible that in the long run, the strain of revolutionary conservatism that has prevailed on the right since 1980 is outright incompatible with liberal democracy.