Today is the ten year anniversary of Justice Scalia's passing. At the time, I could not have fathomed what the ensuing ten years would bring. To commemorate that day, I quote at length from my 2016 book, Unraveled. There are some good nuggets here, a few that I had forgotten!
The news of Scalia's passing broke on Saturday, February 13, 2016, at about 4:30 PM. Within minutes, through what Adam Smith would call the invisible hand , a Republican strategy spontaneously organized on social media: no confirmation until after the election, regardless of who the nominee is. At 4:56 PM, Conn Carroll, a spokesman for Senator Mike Lee (R- UT), tweeted, "What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia." Conservative pundits quickly reinforced the message. Sean Davis, who writes at The Federalist , posted at 4:52, "If Scalia has actually passed away, the Senate must refuse to confirm any justices in 2016 and leave the nomination to the next president."
One hour later, before consulting his caucus, Majority Leader McConnell released a statement: "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President." Senator John Cornyn (R- TX) warned that whoever the President nominated had no chance of confirmation, and would "bear some resemblance to a piñata."
Almost immediately all eyes turned to an octogenarian from Iowa. Chuck Grassley, Chairman of the Senate Judiciary Committee, held almost unfettered discretion over whether Obama's nominee would even be considered by the Senate. The New York Times reported that Grassley "arguably" has "more power than any other individual senator in deciding if the process will move forward."
Before a nominee was even named, pressure mounted on the folksy Iowan to hold a hearing. The Des Moines Register called on Grassley to proceed with Obama's nominee. "This could have been a 'profile in courage' moment for Senator Grassley. This was an opportunity for our senior senator to be less of a politician and more of a statesman. It was a chance for him to be principled rather than partisan." In the immediate aftermath of Scalia's passing, Grassley was somewhat noncommittal. He told Radio Iowa , "I would wait until the nominee is made before I would make any decisions."
He called for patience. "One step at a time." The Times observed that early on the Iowan "has given off conflicting signals about his intentions." Republicans defended their opposition to a hearing, citing Democratic filibusters of President Bush's nominees a decade earlier. Democrats countered that they filibustered lower- court nominees, who were at least afforded a hearing, even if they did not receive a vote. Further, the Supreme Court, they argued, was different. Denying a nominee a hearing was the next level up from blocking a nominee's floor vote. Michael Barone's observation is still evergreen: "In politics . . . all procedural arguments are insincere."
In 2010, the Chief Justice lamented the politicization of the confirmation process. "Each political party has found it easy to turn on a dime," Roberts observed, "from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes." Senator Grassley charged that Roberts had it "exactly backwards." The "confirmation process doesn't make the Justices appear political," the Iowan said. Rather, "the confirmation process has gotten political precisely because the court has drifted from the constitutional text, and rendered decisions based instead on policy preferences." Grassley specifically targeted Roberts's Obamacare decisions. "In fact, many of my constituents believe, with all due respect, that the Chief Justice is part of this problem. They believe that a number of his votes have reflected political considerations, not legal ones." To the extent that the Chief's ACA opinions were designed to keep the Court out of the political arena, the plan backfired in ways that were impossible to anticipate.
After some vacillation, the Republican leadership solidified its position. McConnell and Grassley coauthored an editorial in the Washington Post expressing their shared strategy. "Given that we are in the midst of the presidential election process," the Kentuckian and Iowan wrote, "we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court." As for a question of duty, they wrote that the "Constitution grants the Senate the power to provide, or as the case may be, withhold its consent." The Senate leadership held firm and refused to schedule a hearing for Garland. Many declined to even meet with the nominee.
