What Democrats should do about the Supreme Court.

Republicans Stole the Supreme Court. Democrats, Don’t Let Them Get Away With It.

Republicans Stole the Supreme Court. Democrats, Don’t Let Them Get Away With It.

The law, lawyers, and the court.
Nov. 14 2016 4:59 PM

Republicans Stole the Supreme Court

Democrats, don’t let them get away with it.

Supreme Court
Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, and Sotomayor await President Obama’s State of the Union address in Washington, D.C., Jan. 12, 2016.

Jonathan Ernst/Reuters

We are already hearing from Republicans and Democrats in leadership positions that it is incumbent on Americans to normalize and legitimize the new Trump presidency. We are told to give him a chance, to reach across the aisle, and that we must all work hard, in President Obama’s formulation, to make sure that Trump succeeds. But before you decide to take Obama’s advice, I would implore you to stand firm and even angry on this one point at least: The current Supreme Court vacancy is not Trump’s to fill. This was President Obama’s vacancy and President Obama’s nomination. Please don’t tacitly give up on it because it was stolen by unprecedented obstruction and contempt. Instead, do to them what they have done to us. Sometimes, when they go low, we need to go lower, to protect a thing of great value.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

The seat that became vacant when Antonin Scalia died earlier this year was blocked by the Republican party for 9 months for reasons that were transparently false from the outset. At first the senators obstructed the president’s pick of moderate Merrick Garland because they claimed Obama was a “lame-duck president” with only a year remaining in his term, and the “people” should be allowed, for the first time in history, to decide for themselves. Later, the reasons for obstruction changed when Senate Republicans began to run on the promise to block any nominees put forward by a Democratic president. Virtually all of those senators won their seats back on the strength of that pledge. Smart guys.

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For Republicans, keeping the Supreme Court conservative was more urgent than governance or leadership or an independent judiciary. To reward that by meeting President Trump halfway on his nominees is not sober statesmanship. It’s surrender. Senate Republicans are already crowing that they can have a Justice Ted Cruz named in the coming days and seated by February. They can. But it is not his seat.

The only proper response from progressives today must be that Donald Trump is a lame-duck president with only four years left in his term, and we must let the people decide the next justice for the Supreme Court. Less fatuously, it must be to obstruct the nomination and seating of any Trump nominee to fill Scalia’s seat. We will lose. But that’s not the point now. Democrats need to repeat Ted Cruz’s lie that eight justices will suffice. If Democrats can muster the energy to fight about nothing else, it should be this, because even if you believe the election was fair or fair enough, the loss of this Supreme Court seat was not. That seat is Merrick Garland’s.

To reiterate, there is absolutely nothing procedural to be done about SCOTUS now. Put aside the Kickstarters and the viral petitions to demand a seat for Garland because an argument was floated that the GOP’s failure to hold hearings represented a waiver by Senate Republicans, leaving Obama free to fill the seat. The waiver idea has been roundly debunked across the ideological spectrum. Save your energy. If Merrick Garland is to be seated in the coming weeks at the Supreme Court it will be by way of an Obama recess appointment, if there is a recess, and in that case he will be seated for a year and no more. It will all be a grotesque spectacle, demeaning the players and diminishing and compromising the public esteem for the court. A recess appointment would be the kind of stunt-nomination Obama has eschewed throughout his presidency, guaranteed to embarrass the executive and Judge Garland, who deserved to have us fight for him long before now. But it would at least be a symbol that tantrum can be met with tantrum, and that Democrats will not be rolled. So that’s one option. It’s not a fix. But at least it’s not a capitulation.

Another option, just in case President Trump decides against uniting America by renominating Judge Garland in January: Senate Democrats should filibuster whomever Trump picks. Perhaps Trump will nominate his own Harriet Miers. His sister the judge or his daughter the clothing designer or white nationalist Steve Bannon or Peter Thiel. The “list” of 21 possible nominees from his website, posted to convince conservatives before Election Day that Trump’s general apathy about the courts could be harnessed for the goals of the Heritage Foundation, appears to have been taken down now. Who knows what he plans to do?

Anyway, If Senate Democrats attempt to filibuster, Senate Republicans will probably just kill the filibuster for Supreme Court seats, as they have already promised to do, and as Democrats only last week were promising to do if they won the Senate. This is how it will go down. Democrats will live to regret the killing of the filibuster. But whether they killed it or Republicans do it, we knew it would go, and with it all the norms and values it represented.

Realistically, what is left to do, aside from sending fresh fruit and a Vitamix to Justices Ginsburg and Breyer, is to figure out a way to make this a front-page story until January. Our choices now are to make a huge national fuss or to quietly and maturely accede to a Trump nominee, who will assuredly be on board for rolling back Roe v. Wade, protecting religious objectors from general laws, and expanding gun rights. We can hold out hope that Trump’s general lunacy and opportunism will lead him to seat someone wholly unpredictable, a kind of sweeps-week stunt nominee like Michelle Obama or Justice Omarosa or his son Barron. But for all that I have railed against destructive partisanship directed at fragile courts, I am persuaded now that the only way to answer nihilism is with nihilism of our own.