Justice Clarence Thomas, speaking to the Heritage Foundation Wednesday night, was asked about the refusal by Senate Republicans to allow a confirmation vote on Judge Merrick Garland’s nomination to the Supreme Court. (The unfilled vacancy has left the court split 4-4, unable to decide important cases without a ninth, tie-breaking vote.)
“This city is broken in some ways,” Thomas said, choosing to address the issue obliquely rather than directly. “At some point, we have got to recognize that we’re destroying our institutions.”
That does seem to be the plan, yes.
Garland’s nomination has been pending since back in March, with no action taken. Senate Republicans have tried to justify that refusal to “advise and consent” on the grounds that their refusal was temporary, until a newly elected president took office. Now, with the election of Hillary Clinton looking likely, they are screwing up the political courage to push that argument even farther.
A few hours before the comments by Thomas, Sen. Ted Cruz had suggested that if Clinton wins, he and his fellow Republicans might refuse to ever fill that vacant seat. If any additional vacancies emerged — three of the eight surviving justices are 78 or older — they would refuse to allow Clinton to fill those as well.
Earlier this month, Sen. John McCain had made a very similar threat.
“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up,” McCain said on a talk-radio show in Pennsylvania, where he was campaigning for Sen. Pat Toomey. “This is the strongest argument I can make to return Pat Toomey, so we can make sure there are not three places on the United States Supreme Court that will change this country for decades.”
McCain later backed off that stance, but clearly the notion of an all-out, long-term refusal to confirm Supreme Court nominations is gaining steam among conservatives. It’s no coincidence that recent articles in both National Review and at The Federalist, the house organ for the conservative legal movement, have attempted to give the notion a patina of legality and legitimacy.
In his piece at The Federalist, Cato Institute legal scholar Ilya Shapiro is pretty frank about how far this could go:
“As a matter of constitutional law, the Senate is fully within its powers to let the Supreme Court die out, literally. I’m not sure such a position is politically tenable — barring some extraordinary circumstance like overwhelming public opinion against the legitimacy of the sitting president — but it’s definitely constitutional.”
These are people who call themselves conservatives, mind you, people who like to claim a deep, abiding reverence for the Constitution and the system of republican government handed down to us by the founders. Yet here they claim the right to completely negate one of the key attributes of that system recognized for more than two centuries, the authority granted to the president to fill court vacancies. They refuse to allow that part of the Constitution to function because they fear what the normal functioning of the Constitution would bring.
And as Shapiro notes — “the Senate is fully within its powers to let the Supreme Court die out, literally” — their radical attack is not merely upon the executive branch, but upon the judiciary as well.
As I’ve argued before, this is not an isolated example, but instead must be viewed as part of a broad, perhaps even existential assault. For the past quarter century, the conservative movement has been working toward a conviction that if they cannot win control of government through the ballot box in order to work their will, they will use what control they do have to ensure that the institutions of government do not work at all, in any regard. It is secession by other means, a retreat into a virtual confederacy, with no compunction about the damage done in the process.