Reagan's subsequent nominees -- Justices Kennedy (who was nominated after Bork's defeat) and Scalia -- were confirmed unanimously. And even after the Democrats regained control of the Senate, the first President Bush's nomination of Clarence Thomas (to replace Thurgood Marshall, no less) was confirmed despite Thomas's extreme conservatism, well-founded and disturbing allegations of sexual harassment and a thin judicial resume. Thomas won by a painfully slim 52–48 vote, with the help of 11 Democrats. And Samuel Alito, the choice of the second President Bush to replace Sandra Day O'Connor, and a justice probably farther to the right than Scalia and Thomas, was confirmed despite enough Democratic Senators voting against him to have successfully filibustered and prevented an "up or down" vote.
You see, the Democrats compromise and operate within conventional norms -- even if it is to the detriment of their Party and in contravention of their political principles. Republicans? Not so much.
President Obama called the Republicans' bluff and nominated not a left-leaning progressive to the Supreme Court but, rather, Merrick Garland -- a centrist with a reputation for fairness, civility and following the rule of law. Judge Garland was someone GOP leaders agreed would be acceptable until Obama nominated him. Then this unassailable jurist was unable to muster even the traditional courtesy meetings with Republican Senators much less confirmation hearings or a vote.
Ignoring the fact that Obama had almost a year left in his second term when Garland was nominated, Republicans contended that the next president should decide who should fill the Supreme Court vacancy created when Justice Scalia left the building, as it were. This argument had no basis in history or logic or convention, but they stuck to it. Well, they stuck to it until it appeared that Hillary Clinton was going to win the presidency, when such Republican
It seems that Republicans believe that the third, purportedly co-equal branch of government belongs to them. For Republicans, this is apparently akin to the legal principle of adverse possession -- where one acquires title to property simply by virtue of being in possession of it for a certain number of years. The Supreme Court has firmly been in conservative hands ever since President Nixon replaced members of the Warren Court with the likes of Warren Burger and William Rehnquist. And they intend to keep it that way.
Republican ownership of the Court, of course, has now been made far easier not only by the election of Donald J. Trump, but also because the Republicans kept their majority in the Senate. Thus, their unprecedented hostage taking of Justice Scalia's seat has paid off. Not only will Trump get to nominate Scalia's successor, but he will likely get a chance to fill additional seats. Justice Ginsburg is 82, Kennedy is 79 and Breyer is 78. Trump, if not impeded, could have the opportunity not only to restore the 5-4 conservative majority that existed before Scalia's passing, with the occasionally reasonable Justice Kennedy swinging the other way, but to cement an unequivocal radical right wing majority on the Court for a generation or more.
With that in mind, it is being reported that Trump will announce his nominee next week and the young white men who comprise his short list are, contrary to Republican talking points, far from mainstream. They range in judicial philosophy from the far right to the far, far right, i.e., from Scalia to Alito.
The consequences for civil rights, voting rights and LGBT rights, for women's reproductive health and health care reform, for environmental regulations and Wall Street regulations, for consumers and unions, for gun control and campaign finance reform, for criminal justice and social justice could not be more bleak.
Democrats must take the hard-line, but perfectly justifiable, position that by refusing to hold hearings and vote on the Garland nomination, Republicans have stolen a Supreme Court vacancy to which they are not entitled. Their bad faith is not only evidenced by the unprecedented nature of their obstruction but is proven by their comments suggesting they would never allow a Democratic president to fill a Supreme Court vacancy that could tip the balance of the Court.
In light of this unconscionable conduct, Democrats must use every procedural move in their arsenal to fight, delay, block, obstruct and oppose whoever Trump nominates to the Court.
Republicans, of course, could -- and probably will -- vote to eliminate the filibuster for Supreme Court nominees in response, even though it is something they are loathe to do because it would give a Democratic president and Senate majority of the future the power to select -- God forbid -- liberal justices to the high court.
Whether or not Republicans do away with the filibuster, Democrats need to mount an aggressive, vigorous and well-coordinated attack on Trump's nomination(s). They must use the confirmation hearings as a forum for a meaningful national discussion on what this Country is about. Do a majority of Americans really prefer unfettered corporate power with minimal federal regulations, onerous restrictions on women's reproductive health, and fewer legal remedies for consumers, workers and victims of discrimination? This was the discourse that should have dominated the presidential election but was lost in the muck of email servers, tweet storms and fake news.
After the Republicans unabashedly stated they would obstruct the Garland nomination, I naively thought that the ideological balance of the Supreme Court would become a critical campaign issue that would greatly benefit Democrats running for Senate and for President. As with so many assumptions (I thought climate change would be important too), I was wrong. Democrats, for the most part, did not meaningfully focus on Supreme Court and, as a result, the only voters who seemed to care were the conservatives who want to see Roe v. Wade overturned and unrestricted gun rights affirmed.
Now that the election is over, the fate of Supreme Court -- and the Constitution -- is no longer theoretical. It is up to the Democrats to forcefully and cogently articulate what is at stake, e.g., everything. And it is up to us to make sure that they do.
You know the drill by now. Call your Senators and tell them to resist. Donate to the organizations that are girding for the fight (e.g., Alliance for Justice). Then call your Senators again.