Editor’s Note: This article has been updated to reflect Wednesday’s announcement that Justice Anthony Kennedy is retiring from the Supreme Court.
In the current political era, even the most important stories attract headlines for only a few moments before being swept aside by the next scandal or controversy. So it’s not surprising that the unprecedented blockade of Supreme Court nominee Merrick Garland by Senate Republicans in 2016 had all but disappeared from public consciousness until last month’s end-of-the-term decisions and the departure of Anthony Kennedy. But the implications of this incident are likely to last.
If the tactics used by Republicans become the new normal, we could see a future in which the Senate simply refuses to consider judicial nominees (for both the Supreme Court and lower federal courts) from a president of the opposing party. This would signal a crisis for one of the three major branches of government, and for the basic workings of our democratic system.
With Washington paralyzed by partisanship and day-to-day concerns, philanthropy should take the lead in drawing attention to this looming threat and begin identifying potential solutions. Foundations have taken a crucial leadership role in trying to protect basic democratic norms at this moment of potential civic peril, and the possibility of complete judicial gridlock at the highest level should rank high on the list of concerns.
Courting Disaster
Judicial appointments have become increasingly partisan over the last few decades, with both sides using escalating tactics to block nominees. However, the opposition to Garland represented something new.
Republicans defended their actions by saying they were simply refusing to consider nominees during an election year. It’s difficult to take this argument at face value. If President Barack Obama had nominated Garland in December instead of March. does anyone think the outcome would have been different?
Rather, their behavior seemed guided by a much simpler principle: A Republican Senate should not hold hearings on any Supreme Court nominee from a Democratic president.
It’s hard to imagine this being a one-off occurrence. If Democrats retake the Senate in 2018, there will be enormous pressure to refuse to act on any Supreme Court nominees during the rest of President Donald Trump’s term. From there, with both sides having blocked a nominee, this sort of opposition could easily become the rule rather than the exception.
This strategy might be in the short-term interest of both parties, but it would be disastrous in the long run. And if vacancies start to accumulate on the Supreme Court, it could threaten the entire concept of judicial review. Partisan enmity remains so deep and unyielding in Washington that it’s hard to hold out much, if any, hope that the parties will reach a compromise if left to their own devices.
But the surge of activity from foundations and nonprofits to try to protect basic functions of democracy, from voting rights to freedom of the press, is starting to make a difference. The cold war over judicial nominations is another key topic to address.
Opening Arguments
Removed from everyday political constraints and incentives, and with resources and a strategic vision that go beyond those of individual political scientists or advocates, philanthropy is uniquely positioned to address this issue and do so in a way that is likely to make a tangible impact on the political discourse.
A logical starting point would be to highlight the growing threat to the judiciary and consider what solutions are politically feasible. This could be done through a report based on interviews with academics, advocates, and current and former senators and Senate Judiciary Committee aides, or via a blue-ribbon commission featuring many of the same experts and stakeholders.
Potential solutions could range from establishing new norms governing the treatment of judicial nominees to more rigid rules, such as Supreme Court term limits, to make the appointment process more predictable and lower the stakes of any individual nomination.
Grant makers could then support efforts to promote promising solutions through public campaigns and personalized outreach to members of Congress and other key stakeholders. Philanthropic efforts have helped start and nurture bipartisan coalitions and working groups on other, equally contentious issues.
We should not be naïve about the obstacles involved in finding ways to improve the system. Increased polarization in Congress coupled with the enormous power of the Supreme Court provides an understandable incentive for total obstruction.
Further, some solutions might do harm than good. For instance, encouraging a hypothetical Democratic-controlled Senate to allow a vote on a Supreme Court nominee from President Trump could theoretically lead to more extremist tactics in the future. If one side knows there will be no repercussions for obstructionism, it may be tempted to obstruct again.
But these are challenges worth acknowledging, not reasons to ignore the problem. The treatment of Judge Garland will inform the tone of future confrontations over Supreme Court nominees. Eventually, some sort of compromise or new approach will be necessary. The time to act is now.
Luke Freedman is consultant in Washington, D.C., who works with foundations on a range of issues at the intersection of public policy and politics.
