Wednesday, April 05, 2017

Theft of a Supreme Court Seat

Across most of the media and even as it has been discussed by Democratic senators, the replacement of Antonin Scalia on the Supreme Court has been treated as the normal if politicized thrum of politics. It was far more serious than that; we've just witnessed something unprecedented and dangerous and I hope people treat it as such.

The Republican Party used their thin majority on the Senate to blockade a nomination by a sitting US president. The Constitution, a document of just 4543 words (the length of a magazine article), does not go into great lengths to pre-adjudicate every instance in which one party attempts to seize the levers of the judiciary. It says, briefly, just this:

"...and he* shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court." (Article 2, Section 2)

The GOP did not advise not consent. They ignored. When it appeared likely that Hillary Clinton would win the presidency, they toyed publicly with the idea of blockading any *Clinton* nominee (including the chair of the judiciary committee, Chuck Grassley). This is the very definition of a constitutional crisis--when one part of government ignores rules or laws or exploits their absence to seize power for one political faction. And that's precisely what happened.

At the end of the week, Neil Gorsuch, one of the two most conservative justices nominated in the past 50 years, will be installed on the Supreme Court. The court will have spent *two entire sessions* with only eight justices, but Republicans were happy to pay that price. They flouted existing norms and defied the executive branch and violated the obvious intention of the founders, who did not intend to give the Senate a veto (which is why no such language is used).

The Republicans, many Democrats, and the media will treat this as business as usual. Many or most will treat the Democratic filibuster--which doesn't even flout Senate rules, much less violate the constitution--as the breakdown of norms. This is a dangerously lazy and ahistorical view of recent events.

As citizens, we become complicit in the political dysfunction when we allow it to be normalized. It was not normal--it was a naked power grab and an assault on the constitution. There's nothing to be done immediately, but please, do not slip into the habit of thinking what just happened was normal or appropriate. In 2018, 2020, and 2022, when you're voting for your senator, remember this moment--and choose accordingly.

(Special thanks to my Senator, Jeff Merkley, for staying up all night and speaking about this in the Senate.)
*the President, whom 18th-century white men assumed would always be male

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