Red velvet drapes hang at the back of the courtroom at the U.S. Supreme Court building in Washington, June 20, 2016. 
Photo by Jonathan Ernst/Reuters

Dem senator: A Supreme Court seat is ‘being stolen’

Updated
As recently as Tuesday – literally, the morning of Election Day – Sen. Roger Wicker (R-Miss.) became the latest Republican senator to raise the prospect of confirming Supreme Court nominee Merrick Garland during the lame-duck session. This was not an uncommon posture within the GOP: Wicker and others believed Hillary Clinton would win the election, so confirming President Obama’s compromise choice would be preferable to whomever Clinton picked in 2017.

Except, of course, these same Senate Republicans were as surprised as everyone else to discover that Americans had actually elected Donald Trump. The lame-duck confirmation plan wouldn’t be necessary after all – because the GOP’s Supreme Court blockade scheme, once thought to be a historic mistake, had worked like a charm.

Sen. Jeff Merkley’s (D-Ore.) outrage is well-grounded – and perhaps too rare given the circumstances.
A Democratic senator accused the GOP of “theft” for blocking President Barack Obama’s nominee for the U.S. Supreme Court so it can be filled by the Trump administration.

“We really have to pay attention to the Supreme Court seat. The seat that is sitting empty is being stolen,” Sen. Jeff Merkley told MSNBC’s Chris Hayes on Thursday night. “It’s being stolen from the Obama administration and the construct of our Constitution. And it’s being delivered to an administration that has no right to fill it.”
The Oregon Democrat added, “There’s no legitimacy to a Supreme Court justice in a seat that’s been stolen from one administration and handed to another. We need to do everything we possibly can to block it … it won’t be DOA unless the American people understand that this is the theft of the court.”

Merkley’s rhetoric may seem a little over the top, but his position is worth considering in more detail. Senate Republicans launched the first Supreme Court blockade in the history of the country. As regular readers know, Americans – at least those passively aware of current events – have never seen such an abandonment of our constitutional process. As Republican politics reached new levels of radicalization, the intensity of their maximalist tactics arrived at an unprecedented and scary point.

Senate Majority Leader Mitch McConnell (R-Ky.) did it anyway, gambling that (a) he could get away with it; and (b) his gambit would work.

For months, it started to look like the boneheaded political strategy of the decade. When McConnell and Senate Republicans launched the blockade, they assumed a Republican would win the White House – an assumption that started to appear ridiculous when GOP voters nominated a bigoted reality-show personality. McConnell, to borrow Merkley’s analogy, was stealing a Supreme Court seat from one president, only to hand it to another president he hated even more.

But now we know better. McConnell is getting the last laugh. It is, however, a maniacal laugh.

Going forward, Americans should understand that rewarding radicalism produces more radicalism. Senate Republicans abandoned the constitutional process, institutional norms, and democratic traditions, ignoring a duly elected president’s high-court nominee – without so much as a hearing – because of his party affiliation. And because that gambit worked, and voters rewarded the scheme, the message for policymakers is, “Go ahead and pursue similarly radical plans. The public doesn’t care. There are no consequences for misbehavior.”

In recent weeks, a variety of Senate Republicans raised the prospect of keeping the Supreme Court at eight members – or perhaps even fewer – extending the blockade until 2021 at the earliest. They did so because they saw Clinton’s victory as a foregone conclusion. With President Trump in office, how many Senate Democrats are prepared to consider the GOP’s discarded plan?



Jeff Merkley, Mitch McConnell, Senate Republicans and Supreme Court

Dem senator: A Supreme Court seat is 'being stolen'

Updated