In March 2016, President Barack Obama moved to fill a Supreme Court vacancy created by the death of Justice Antonin Scalia. Republican Senators, in the majority, refused to hold hearings for Obama’s nominee to replace Scalia, Merrick Garland. The Republicans’ claim was that 2016 was an election year, Obama was finishing his second term and clearly could not run again, so the Supreme Court should not have an empty seat filled by someone who wasn’t going to be president after 2016. The new president, whomever that might be after the November 2016 election, should get to fill the seat.
This was an argument never before advanced in the Senate. Think about what that argument is: why should Supreme Court Justices be chosen only by an incoming president? The clear message is that presidents should get to choose Justices who agree with them politically–that a president should be able to shape the Court to do his political bidding. A president shouldn’t have to resign himself to fighting with a Court that doesn’t toe his line.
This is deeply un-American. In the United States, the judiciary is meant to be objective. Judges and Justices are not elected because they are not meant to reflect popular sentiment. As we say in one of our many posts on the judiciary and tyranny of the majority,
The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule–the basis of democracy–ends up perverting democracy by forcing injustice on the minority of the public.
For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans were trampled by the tyranny of the majority.
Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation.
In each example, the majority is imposing and enforcing injustice which is incompatible with democracy. They are tyrannizing rather than governing.
The judiciary was created to break this grip of majority tyranny. The legislature–Congress–cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.
If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.
This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.
President Obama’s candidate was blocked by Senate Republicans nine months before the November 2016 election as “too close” to the election. Now, in September 2020, less than two months before the election, Senate Republicans are united in calling for President Trump to nominate a new Justice so the Senate can hold hearings and get the nominee confirmed before the election on November 3.
At first, Republican Utah Senator Mitt Romney seemed to waver from this position. But then he toed the line using words that echo those of a terrible moment of failure in our democracy: the Dred Scott decision.
Here’s a quick summary of this 1857 case from our series on Dred Scott:
In 1857, the United States Supreme Court, led by Chief Justice Roger B. Taney, declared in its Dred Scott v. Sanford decision that black Americans, whether they were considered free people or enslaved, were not citizens of the U.S. and could never become citizens because of their race. Dred Scott was an enslaved man who lived in Missouri. The man enslaving him took Scott and Scott’s wife Harriet north to the free states of Illinois and Wisconsin, then took them back to slave Missouri. Scott claimed that once he and Harriet had crossed the border into free states, they had become free, as slavery was not allowed in those states. Once a person has gained free status, whether deliberate or not, he or she cannot be returned to slavery.
The Court found against Scott.. but not really. In reality, Chief Justice Taney declared in the majority decision he wrote that the Court actually decided that it should not even have heard the case at all. As we say in our analysis of Taney’s summary,
Taney began the opinion by citing precedent for upholding slavery, pointing out that slavery was written into U.S. law by the Founders. He then explained why the Founders were racist (as we would say; Taney certainly did not put it this way), and thought black people were inferior, and took this to its logical conclusion—if black Americans are ignorant and cannot understand law, they cannot be made citizens because they cannot uphold democracy. Therefore, the Founders did not accidentally omit black Americans from the definition of citizen, but consciously acknowledged that black Americans could not function as citizens. Thus, they did not ever mean for the definition of citizen to be changed to include black Americans.
We see that Taney is actually avoiding ruling on Dred Scott and slavery at all; he is refusing to involve his Court in the slavery debate because he believes Congress should be the sole author of slave law. Taney says the Court’s hands are tied: enslaved people are miserable, Taney says, and the people enslaving them are despotic, but the law is the law.
Why not just amend the Constitution if slavery is wrong? Overturn precedent—the Court can do that. Here, in his conclusion, Taney will erase that possibility as well. Again, these are excerpts, and not the full text of the opinion, and all italics are mine:
“No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.”
Taney rules out the possibility that Americans realizing that race-based slavery is immoral (a change in “public opinion or feeling”) should ever lead the Court to overturn established law and legal precedent. Why not just amend the Constitution if we’re not all agreed now, in 1857, that slavery is justified because black people are inferior? Here’s Taney’s answer:
“…while it remains unaltered, it must be construed now as it was understood at the time of its adoption… Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes.”
In other words, as we said then, “Taney is saying that the Constitution can be changed (altered), but until it is changed, it must be obeyed (“it must be construed now as it was at the time of its adoption”). So yes, you can change the Constitution if you deem it unjust, but until you change it you can’t change it. And he’s not going to change it… because it hasn’t been changed yet.”
Taney concludes the majority opinion by saying that since black Americans are not citizens, Scott should never have appeared in any U.S. court, and so the Circuit Court was wrong to hear the case and issue a ruling, and the case is now dismissed.
Where does Mitt Romney come into this awful equation? On September 22, 2020, he was interviewed on camera about why he supported hearings for a Republican Supreme Court nominee less than 6 weeks before a presidential election but didn’t support them for a Democratic nominee 9 months before an election. Here is a transcription of his response:
REPORTER: Back in 2016 the message was “let the voters decide” – why not now?
ROMNEY: At this stage it’s appropriate to look at the Constitution and to look at the precedent that has existed over—well, since the beginning of our country’s history. In a circumstance where a nominee of a president is from a different political party than the Senate, then, more often than not, the Senate does not confirm. So the Garland decision was consistent with that. On the other hand, when there’s a nominee of a party that is in the same party as the Senate, then typically they do confirm. So the Garland decision was consistent with that, and the decision to proceed now, with the President Trump’s nominee, is also consistent with history. I came down on the side of the Constitution and precedent, as I’ve studied it, and make the decision on that basis.
…I prefer choosing those folks who are, if you will, strict constructionists, meaning that they look at the law itself, and the Constitution, rather than looking into the sky and pulling out ideas that they think may be more appropriate than either the law or the Constitution.
It’s also appropriate for a nation that is, if you will, center-right, to have a court which reflects center-right points of view, which again are not changing the law from what it states but instead following the law and the Constitution.
Let’s review:
Taney, 1857: “…while it remains unaltered, it must be construed now as it was understood at the time of its adoption… Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes.”
Romney, 2020: “I prefer choosing those folks who are, if you will, strict constructionists, meaning that they look at the law itself, and the Constitution, rather than looking into the sky and pulling out ideas that they think may be more appropriate than either the law or the Constitution.”
Both men equate finding the Constitution to be unjust with popular fads or opinions. The implication is that no reasonable, far-sighted, intelligent person would ever find the Constitution to be unjust, so anyone who wants to change it is a nut who probably has lots of crazy ideas. The judiciary will not stoop to that. This despite the clear role laid out in the Constitution for the judicial branch to analyze U.S. laws and amend any that are unjust.
But it’s even worse in Romney’s case, as the Constitution says nothing about this matter. There is no law about how to proceed with Supreme Court nominations to uphold via precedent or to change via the judiciary. Let’s fact-check Romney:
At this stage it’s appropriate to look at the Constitution and to look at the precedent that has existed over—well, since the beginning of our country’s history. In a circumstance where a nominee of a president is from a different political party than the Senate, then, more often than not, the Senate does not confirm.
What does the Constitution really say? Article 2, Section 2, Clause 2:
He [the president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
There is nothing in the Constitution that says that “in a circumstance where a nominee of a president is from a different political party than the Senate, then, more often than not, the Senate does not confirm.” So there is not Constitutional or legal precedent for this. In fact, a quick scan of presidential nominations to the Court from Washington to Obama shows that there were completely extra-legal “senatorial courtesies” that Senators developed and observed, like letting Senators from Georgia, for example, have the final word on evaluating a Court nominee from Georgia.
We also find that most presidents who had one nominee rejected were able to successfully nominate another person who was confirmed. The idea that anyone a Republican president nominated would be rejected out of hand by Democratic Senators is a myth.
In the 20th century, we do find a growing trend of nominees being rejected on ethical grounds. Harding, Hoover, Eisenhower, Nixon, and Reagan all had candidates rejected, refused hearings, or withdrawn for ethical reasons. Sometimes this was for the right reasons–Hoover’s candidate John Parker was opposed for his anti-labor and racist beliefs. Sometimes it was for the wrong reasons–Eisenhower’s candidate John Marshall Harlan II was rejected for his “ultra-liberal” positions. But we often find that someone who was rejected once was later confirmed–this happened with Harding and Eisenhower in the 20th century.
Nowhere in the Constitution does it say that a sitting president cannot get a hearing for their Supreme Court nominee. There is no precedent for refusing the candidate of a sitting president a hearing during an election year. If we go down this road, we invite the possibility of saying that only a president whose party is in the majority in the Senate can nominate a candidate and get a hearing. This is not our democracy.
Back to Romney and his defense of “precedent” (even when there is none):
since the beginning of our country’s history… In a circumstance where a nominee of a president is from a different political party than the Senate, then, more often than not, the Senate does not confirm. So the Garland decision was consistent with that. On the other hand, when there’s a nominee of a party that is in the same party as the Senate, then typically they do confirm. So the Garland decision was consistent with that, and the decision to proceed now, with the President Trump’s nominee, is also consistent with history. I came down on the side of the Constitution and precedent, as I’ve studied it, and make the decision on that basis.
Continuing an error–in this case, allowing partisanship to thwart the purpose of the judiciary as a whole and the composition of our highest court in particular–is justified, for Romney, because the error is longstanding. Doing the wrong thing often enough transforms the error into a precedent that must be upheld–that is, into the right thing to do. This is a solipsism: the Garland decision was consistent with other unjust decisions so the Garland decision conforms to unjust precedent so I will follow unjust precedent since others have before me. He has not studied this, or he would know that the Constitution has no role here. To make a decision to continue an error is not a high-minded, lonely stand for justice.
When Romney says “I prefer choosing those folks who are, if you will, strict constructionists, meaning that they look at the law itself, and the Constitution, rather than looking into the sky and pulling out ideas that they think may be more appropriate than either the law or the Constitution”, he is insulting anyone who believes the Constitution can or should be amended. He is also channeling Taney in the purest way. Compare Romney’s statement to Taney’s:
No one, we presume, supposes that any change in public opinion or feeling… in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted… while it remains unaltered, it must be construed now as it was understood at the time of its adoption… Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes.
Finally, it is not, as Romney says, “appropriate for a nation that is, if you will, center-right, to have a court which reflects center-right points of view, which again are not changing the law from what it states but instead following the law and the Constitution.” The whole point of the judiciary, as we began by stating, is to adhere objectively to the principles in our Constitution–and its amendments--to ensure liberty and justice for all, and not to follow the will of the majority, support one political party or another, or say “the Constitution is perfect and should never be changed.”
There are many ill omens in 2020 that lead the historian to draw parallels to the precarious state our nation was in on the eve of the Civil War. This statement from Romney, and the anti-democratic, anti-American partisan perversion of the Supreme Court nomination process, is one of them.
The Historic Present 