All Supreme Court nominations are divisive

"A pox on both your houses," Shakespeare might say, were he around to observe the U.S. Senate's "advise and consent" duties in recent years. 

The Senate is headed toward a filibuster over the nomination of Neil Gorsuch to the Supreme Court. Democrats say they cannot in good conscience approve the nomination of such a man. The Republican leadership appears ready to eliminate the Senate's cloture rule, which has been around since the first years of the Republic, in order to get Gorsuch approved.

President Trump's nomination of Gorsuch came a year after the death of Justice Antonin Scalia, a year in which the Republican-controlled Senate refused to even hold hearings on the nomination by President Obama of moderate Judge Merrick Garland. The Republican rationale was that voters might elect a Republican to the White House in 2016, and that president might nominate someone more conservative and more to their liking. The reasoning they presented to the public was that the 2016 electorate should decide who fills that Supreme Court seat; it shouldn't be filled by the 2008 and 2012 electorate that chose President Obama or by a president who has held office for seven years. It didn't matter whether anyone accepted their thinking, the Republicans controlled the Senate and got their way.

My hope was that Hillary Clinton would win and take revenge by nominating someone far less to Republicans' liking, such as Bill Clinton or Barack Obama. (Check with William Howard Taft about the willingness of former president to accept appointment to the Supreme Court.)

(Not that I wanted Hillary Clinton to be president -- I simply wanted the GOP leadership to learn a hard-earned lesson. I thought voters might punish Republicans for obstinately blockading a qualified nominee, but I was wrong.)

What I've heard of Gorsuch's testimony before the Senate Judiciary Committee and what I've read about Merritt persuades me to believe that both men are well qualified to serve on the Supreme Court. A court with five Gorsuches and four Garlands, or five Garlands and four Gorsuches, it seems to me, would be a good, reasonable court.

Consider this: A recent poll found that more than half of Americans surveyed could name even one current Supreme Court justice. It's true that Supreme Court justices serve for decades and almost always influence events long after their sponsoring president has left office. But most voters don't know a single justice.

Judicial nominations have not always been so partisan. When Robert Bork was nominated by President Reagan, it was assumed that the old rules would apply: a qualified nominee would be approved by the Senate in deference to the president's preferences, so long as no ethical or competency issues arose. But Bork's nomination unexpectedly faced a concerted effort by Democrats and interest groups to stop him. Hence, the verb "borked," meaning to be demonized unfairly by lobbying and media campaigns, was born. Suddenly, Supreme Court nominations became national elections without a popular vote (by people who can't name a single justice).

The nomination of Clarence Thomas by George H.W. Bush took a similar path, but he eked out an appointment, 52-48, after an extremely emotional and divisive hearing.

Since then, the partisanship has extended even to federal district court nominations, prompting Democrats, who then controlled the Senate, to change the time-honored rules and stop debate on lower-court nominations, but not Supreme Court nominations. 

Now Majority Leader Mitch McConnell appears ready to use the "nuclear option" and halt debate with a simple majority vote on Supreme Court nominees. If that happens, the Republic will not fall, but this change will likely only make the nomination process more partisan and divisive.

Halting Supreme Court nominee is a gamble

The unexpected death of Supreme Court Justice Antonin Scalia had hardly sunk into our consciousness Saturday before Republican leaders and presidential candidates were proclaiming that President Obama should not be allowed to nominate a replacement for Scalia. The GOP-majority Senate, they said, must not approve anyone the president nominates.

But before Ted Cruz, Marco Rubio and the others go too far down that road, they might want to consider what refusing to allow the constitutional nomination and consent process to take place might mean. There's an election in November, and none of the Band of Belligerents running for the GOP nomination have any assurance of prevailing against the Democratic nominee. Should the Senate refuse to allow a Supreme Court nomination by President Obama, in January they might find themselves confronted with a nominee from President H.R. Clinton or President Bernie Sanders.

Would a Clinton or Sanders nomination be more comfortable for the Republicans than an Obama nominee? Probably not. Although Obama has been the target of some of the angriest and most scurrilous attacks in recent American politics, he has usually sought to lean toward the center in his judicial appointments, selecting respected lower-court judges and law professors. Another Obama nominee would likely be less distressing to the GOP than the post-election alternative should the Democratic nominee win.

It has been rumored that President H.R. Clinton might appoint Barak Obama, a former law professor, to the Supreme Court. Or, alternatively, she might appoint another former president, a former Arkansas attorney general, to the high court. How would Cruz and Rubio like them apples?

This assumes that the Democrats will win the White House in November. There is close to a 50% chance that the Democratic nominee will win. If the Republican nominee prevails, the gamble on the court will have paid off, but at the expense of making it clear to already disillusioned voters that the Republicans care more about party politics than they care about continuity on the Supreme Court. Whoever a Republican president might nominate to replace Scalia will not be another Scalia, who was an extraordinary legal thinker who bent the trajectory of the Supreme Court over his three decades there. I dare say there is not another like him waiting in the wings.