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The politics of the US Supreme Court

In personnel as well as policy, the rule is live by the sword, die by the sword

Evan Thomas | NYT 


On February 12, 2016, Justice Antonin Scalia died of a heart attack at a remote luxury resort in West Texas. The Republican Senate leader, Mitch McConnell, wasted no time declaring that his party would not allow President to fill the Supreme Court vacancy.

There were still more than 340 days left in Obama’s term, plenty of time for confirmation hearings, but the Republican senators wouldn’t even talk to Obama’s nominee, the thoroughly worthy and decent Merrick Garland. Democrats loudly protested, portraying McConnell as “the obstructionist in chief.” (McConnell “happily embraced his image as the dark lord of the Senate,” Mr Hulse notes, and covered a wall of his office with prints of editorial cartoons “saying all sorts of nasty things about him.”) But the Democrats were hardly in a position to complain.

In 2003, the Democratic Senate leader, Harry Reid, had led the first-ever successful filibuster of a nominee to the federal court of appeals, Miguel Estrada. Then, in 2013, when the Republicans played tit-for-tat and began holding up Democratic nominees to the federal courts in the administration, Mr Reid “went nuclear,” in Senate parlance, engineering an end to the filibuster in judicial nominations — a move that left lingering “bitterness,” Mr Hulse says.

“Blatant hypocrisy,” Mr Hulse declares in this entertaining and shrewd book, is a “defining characteristic” of the United States Senate, certainly in the 21st century. “With control of the Senate frequently shifting between the parties, senators had to master the art of the 180-degree turn, instantly adopting the language and tactics of the opposition party as soon as they exchanged places.”

Shamelessness paid off for the Republicans. Mr McConnell boasted that by preserving an open seat on the Supreme Court, he helped elect president, and Mr Hulse offers polling data to back up this claim. President gloated over the opportunity to stock the rest of the federal bench with conservatives. “You know, when I got in, we had over 100 federal judges that weren’t appointed,” Mr declared to a crowd in March 2018. “Now I don’t know why left that. It was like a big, beautiful present to all of us. Why the hell did he leave that? Maybe he got complacent.” Actually, Mr Obama left so many judgeships unfilled because the Republicans were able to obstruct and delay.

The Trump administration would not let the same thing happen. Mr Hulse colourfully describes Trump’s all-out assault. His chief strategist was the White House counsel Don McGahn, “an unusual mix of conventional Wash­ington Republican and former longhaired radical libertarian who was an excellent guitar player in a beach bar cover band on the side,” Hulse writes.

He set about this with a single-minded zeal that would have made James Madison blanch. “Previous administrations reviewed and picked judges via judicial recommendation committees, exhaustive review and consultation with the Justice Department,” Hulse says. With Mr Trump’s backing, Mr McGahn “wanted to dispense with all that,” and by and large he was able to, thanks to a compliant Republican Senate leadership. Well into Mr Trump’s term, the president had appointed 30 federal appellate judges (about one-sixth of the total) and 53 lower court judges, as well as a Supreme Court justice — Neil Gorsuch, who filled Scalia’s vacant seat.

At the same time, Mr McGahn could be subtle. He signaled to Justice Anthony Kennedy, who was nearly 82 years old, that if he stepped down, Trump would replace him with a former Kennedy clerk, Kennedy may have been anxious about Trump’s somewhat highhanded view of the judiciary, but Mr McGahn knew that Kennedy had a vain side. Gorsuch had also clerked for Kennedy at the Supreme Court.

Mr Hulse, the chief Washington correspondent for The New York Times, is not a knee-jerk Trump critic. He actually credits Mr Trump with “cutting through much of the high-minded malarkey about the neutrality of judges with a single tweet.”

Still, as Mr Hulse points out, there is a reason judges go to great lengths to appear impartial and neutral (and, of course, some truly try to be). The legitimacy of the court depends on a public perception that the justices are fair-minded referees in the political battles that break out between branches of government (Exhibit A: the constitutional crisis now erupting over enforcement of congressional subpoenas on the Trump administration). Democracy depends on customs and norms as well as written rules; civility and comity as well as up-or-down votes. Trashing the time-honoured process for nominating and confirming justices can have unintended consequences.

Power can cut both ways. In personnel as well as policy, the rule is live by the sword, die by the sword: The all-powerful Don McGahn was sacked by Trump for disloyalty when he evaded the president’s apparent bidding to obstruct justice. As a longtime Washington correspondent, Mr Hulse is an expert guide through the machinations on Capitol Hill. He does not offer any revelations about Mr Kavanaugh, searingly accused of sexual assault as a high school student. But he offers a telling scene of Mr McGahn coaching Mr Kavanaugh to push back, hard, against his congressional inquisitors. The tactic worked; Mr Kavanaugh survived. But the spectacle was unedifying and, possibly, a harbinger of worse to come.

©2019 The New York TimesNews Service

Inside Washington’s War Over the Supreme Court, From Scalia’s Death to Justice Kavanaugh
Carl Hulse
Harper/HarperCollins Publishers; $28.99; 310 pages

First Published: Mon, June 24 2019. 00:58 IST