SCOTUS: The Dangerous Empty Seat

For months, Republican Senators have obstinately refused to consider Chief Judge Merrick Garland’s nomination to the Supreme Court. Senator Mitch McConnell set this strategy in motion mere hours after Justice Antonin Scalia’s death, when he issued a statement declaring that he would not allow the vacancy to be filled during the remainder of President Obama’s term. This unprecedented obstructionism has ensured that the future of the Supreme Court is at stake on Nov. 8.

As vividly confirmed by the series of tie votes on important issues during the court’s latest term (including the Administration’s policy of providing immigration-­law relief to alien parents of U.S. citizens), the eight Justices now sitting on the court are locked in a state of jurisprudential and ideological equipoise. So the person who fills Scalia’s seat will likely cast a decisive vote on many issues that matter most to the American people, such as:
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• Whether the court steps back from Citizens United and allows the government to limit the corrosive influence of money in politics, or continues to invoke the First Amendment to dismantle what remains of the nation’s campaign-­finance laws.
• Whether the court gives cities and states the latitude to regulate possession and use of firearms to reduce the risk of appalling tragedies like the massacre of school­children in Newtown, Conn., or instead extends its 2008 decision (in Heller) recognizing a ­Second Amendment right to bear arms that would wipe away many gun regulations.
• How the court evaluates a wide range of laws affecting women’s rights and health, including state legislation that undermines a woman’s right to reproductive freedom, federal regulations aimed at ensuring equal access to contraception and measures that provide for fair pay and protect against workplace discrimination.

As vital as those individual questions are to our nation’s future, however, something even more profound is on the line in this election: the public’s faith in the Supreme Court as an institution of law and not politics. Let’s not mince words. Senate Republicans have refused to even give Garland a ­hearing—let alone an up-or-down vote—­because they know they cannot justify actually voting against him. He is deeply distinguished and superbly qualified based on all the criteria traditionally used to assess Supreme Court nominees, as Senator Orrin Hatch and other Republican Senators have acknowledged. This is all about counting to five votes on the issues that matter most to Republicans. They want the questions that will come before the court to be answered in a manner that advances their conservative ideology and interests, and they believe Donald Trump will nominate a person more likely to do so. So they’ve shredded what was left of the norms that had traditionally governed the Supreme Court confirmation process. If they pull this off, it’s hard to see how we get back to any semblance of a process that focuses on a nominee’s integrity, intellect and temperament. Whatever they may say in the future, their actions are irrefutable proof that for them the bottom line is all that matters.

Worse than that, it is hard to see how we could preserve broad public confidence in the independent judiciary that the framers of our Constitution understood was vital to the legitimacy of our form of government. For tens of millions of Americans, Bush v. Gore was a body blow to their faith in the Supreme Court as an institution devoted to the rule of law and not to politics. But the court is a resilient institution, and its reputation has largely bounced back over the ensuing 16 years—which is due in no small measure to the wise stewardship of Chief Justice John Roberts. All of that is out the window if the Senate Republicans prevail in their partisan power play to hand Trump the ability to name Scalia’s successor. The court will inevitably be dragged down into the hyper­partisan muck that it has so far managed to stay above.

If the Senate Republicans’ obstructionism succeeds, they will have their court. But that’s what it will be: their court, not the nation’s. Let’s hope it doesn’t come to that.

Verrilli was U.S. Solicitor General from 2011 to 2016.