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Regarding the Supreme Court nomination process of the past year, where President Obama's nominee, Merrick Garland, was stonewalled by the Republican congress without a vote or even a hearing, while Pres. Trump's nominee, Neil Gorsuch, was ratified but only by the GOP going to the "nuclear option" to overcome a Democratic filibuster. That's it in a nutshell.

But why was this such a bitter fight that neither side was willing to budge on?

For one thing, as Volokh notes here, the SCOTUS nomination process has been getting increasingly contentious over the past 25 years, with both sides gradually ramping up obstructionism in stages over time:
What this history shows is that there are no clean hands. for over twenty-five years, Senators have engaged in an escalating game of tit-for-tat, in which each side seeks to out do the other, has now gone on for over twenty-five years. Should this trend continue, things will only get worse. What began as a targeted effort to defeat some nominees morphed into the use of procedural delays to slow confirmations. What began as a fight over appellate nominees, has broadened to include nominees for district courts. Whereas delay was once confined to the majority’s use of agenda control to slow down the rate of confirmation and the occasional exercise of home-state prerogatives (through blue slips), it has since been expanded to filibusters of well-qualified nominees.

For another, there's the person being replaced, namely Antonin Scalia, one of the more conservative justices on the Court. With him, there was a roughly 5-4 split, trending slightly towards the conservative side. But Garland would have represented a sea change in the composition of the court. Here's two figures which illustrate why:

(from https://www.washingtonpost.com/news/monkey-cage/wp/2016/03/30/new-data-show-how-liberal-merrick-garland-really-is/?utm_term=.2dab30ad4027)

As we can see, Garland would have changed the composition of SCOTUS in a big way. All 5-4 split decisions would break the way of the more "liberal" side of the Court, had Garland been the replacement for Scalia.

Gorsuch, by contrast, is very much cut from the same ideological cloth as Scalia, as this shows:

(from https://fivethirtyeight.com/features/what-to-expect-from-the-neil-gorsuch-confirmation-hearings/)

Add in that once a justice is on SCOTUS, they are there probably until death, so each choice has decades-long ramifications...plus the desire from the GOP not to allow Obama to have any victories they could prevent (again, something both parties engage in)...and it explains why this particular fight was seen as worth burning a few more bridges over, including making a casualty of the requirement of their being a supermajority of 60 votes to confirm a Justice in the Senate.

The balance of the court was the underlying real cause behind this long fight over the vacancy created by Scalia's death. What I would love to see is, if the next vacancy comes from the more "liberal" side (Ginsburg, most likely, given her age), that President Trump would nominate Garland (again). Everybody who doesn't have a serious ideological blade to sharpen seems to agree that both G&G are very qualified to be on SCOTUS, and Garland wouldn't represent much if any change to the court's makeup. I know, I know, there's reasons why the GOP establishment would hate the optics such a choice would have for them...but Trump isn't part of the GOP establishment, and the Democrats could hardly make much of a case against Garland after portraying him as a symbol of GOP intransigence. It'd also give Trump a card to play if he wants to draw closer to the center and bilateralism, which he may want to do to push agenda items he is more attached to, after the fiasco of the Republican healthcare where the most conservative members of Congress refused to follow his lead.
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tagryn: Owl icon (Default)

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