We stand at a unique point in American history. On June 27, Supreme Court Justice Anthony Kennedy decided to retire and leave his position as the swing vote on the nation’s most powerful court.
Justice Kennedy decided in favor of legalizing gay marriage in the 2012 case of Obergefell v. Hodges, but he was also the deciding vote in the court’s decision to uphold President Donald Trump’s travel ban this year in the case of Trump v. Hawaii.
Justice Kennedy was a moderate who did not necessarily line up with the conservative and liberal categories into which we often try to fit Supreme Court justices. Justice Kennedy’s opinion proved to be the deciding factor on many questions of great legal importance, and convincing him could guarantee which way the full weight of the court would fall.
Now that Justice Kennedy is retiring though, it is time for another nomination to the Supreme Court complete with the usual lengthy political battles. Because of the importance of Justice Kennedy’s swing vote, this year’s confirmation battle will likely be more brutal than normal, as Democrats will try to stop Trump’s nominee from being confirmed by the Senate.
Senate Minority Leader Chuck Schumer called for the Senate to refuse considering any of Trump’s nominations. His reasoning? In 2016, President Barack Obama nominated federal judge Merrick Garland to fill the Supreme Court seat of the late Associate Justice Antonin Scalia.
The Republican controlled Senate responded that it would not act on the President’s nomination until after the presidential election, arguing that the voters should have a choice in the Supreme Court vacancy by electing a new president who could fill it.
Democrats want to give Republicans a taste of their own medicine this year, drawing a false equivalency between 2016 and 2018 along the premise that they are both election years. 2016 was a presidential election, not a midterm, and directly determined who would nominate the next Supreme Court justice.
There is a huge difference between the president’s constitutional job to nominate justices, and the Senate’s job of confirming or rejecting them. In fact, Senate Judiciary Committee Chairman Chuck Grassley has even said he would be in favor of withholding confirmation in the next presidential election year, even if under a Republican president.
And frankly, Democrats need to forget the idea that Judge Garland ever would have become Justice Garland in 2016.
The Senate was controlled by the GOP in 2016. Even if the Senate moved forward with confirmation proceedings in 2016, there is little chance that Judge Garland would have received anything other than a “no” vote. Republicans just chose not to waste their time on any of Obama’s nominees when they knew they had a new president to work with in a couple months.
It’s time for Democrats to be honest about the fact that a Supreme Court seat was not stolen from them in 2016. Unless they can pull a few Republican votes to their side, they have no power over who will be the next justice.
If they want that power, they need the Senate in November and the presidency in 2020. But first, they need to make their case to the American people, and whining about 2016 is unlikely to convince anyone.