Editor’s Note: Elliot Williams is a CNN legal analyst. He is a former counsel to the Senate Judiciary Committee and is currently a principal at The Raben Group, a public affairs firm. Follow him on Twitter @elliotcwilliams. The views expressed in this commentary are his own. View more opinion on CNN.
The confirmation of Ketanji Brown Jackson to be the first Black female justice in the Supreme Court’s 233-year history was as much a historic moment for America as it was a political win for Democrats.
Democrats shouldn’t get too excited, though. Jackson may be one of the few remaining judicial confirmations of the Biden presidency. Last week, Senate Republican Leader Mitch McConnell repeatedly refused to answer whether he would even hold hearings on a nomination if Republicans were to take control of the Senate in the election this November.
Doing so would be McConnell’s latest ruthless breach of the norms of government, and one that will make the public lose even more confidence in the political independence of our courts. However, given that McConnell has been rewarded every time he has blown up the intentions of the framers, his continuing to do so is perfectly rational behavior. The question for McConnell’s colleagues and the American public is whether they are willing to stop complaining about McConnell’s behavior and take aggressive steps to stop it.
Under the Constitution, the president “shall have Power, by and with the Advice and Consent of the Senate” to appoint Supreme Court justices and other federal offices, including lower court judges. Though specifics of the process have evolved over time, under the advice and consent process, the president appoints, and the Senate vets nominees and either confirms or rejects them. The overwhelming majority of presidential appointments are confirmed.
As the process has gotten uglier, the political parties have been the Hatfields and McCoys, pointing fingers over which side first started us down a dark partisan path. For instance, Republicans are quick to argue that Democrats’ conduct during the 1987 Robert Bork and 1991 Clarence Thomas hearings were the points that forever broke the confirmation process.
There is a glaring flaw in that argument. Despite whatever criticism Democrats might warrant for their conduct in 1987 or 1991, at least both Bork and Thomas got hearings. Thomas was eventually confirmed to the Supreme Court. Bork was not – with six members of President Reagan’s own party voting against him.
Many are aware of McConnell’s actions decades later following the death of Justice Antonin Scalia. Within hours of word of Scalia’s death, then-majority leader McConnell issued a statement pledging not to confirm any pick President Obama put up for the court. Far less high-profile, however, were McConnell and Senate Republicans’ near refusal to bring up most of Obama’s lower court nominees for votes, confirming only two appeals court judges in Obama’s final two years in office. It was the slowest pace of judicial confirmations since Harry Truman was president.
It should surprise no one, then, that McConnell is now brazenly playing a public game of will-he-or-won’t-he about confirming any Biden nominees if Republicans take the Senate in November. McConnell and his colleagues have been rewarded richly for being cute with the Constitution and Senate rules. They have no reason to stop.
In 2016, after Republicans kept the Scalia seat open for nine months and blocked most of Obama’s other judicial nominees, President Trump won the presidency and Republicans retained control of the Senate. McConnell was again selected leader, and the Senate confirmed Neil Gorsuch to the vacant seat in 2017.
McConnell will almost certainly be chosen to lead his caucus again next year. With that record of being rewarded for his conduct around judges, why wouldn’t McConnell pledge, or at least hint, that he won’t confirm any of Biden’s nominees? It would be foolish for him not to.
To be clear, McConnell’s conduct, if norm-busting, is perfectly within the rules. The solution for Democrats, then, is to devise equally lawful, but equally bare-knuckled, means of removing the incentive for the behavior. For instance, increasing the size of the Supreme Court might be controversial, but would serve as a check on McConnell’s aggressive blockade (both past and almost certainly future) of Democratic nominees. Doing so would effectively weaken the votes of the nominees McConnell rammed through the process.
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Taking aggressive steps in response to McConnell is less about stacking the courts with Democratic nominees, and more about resetting the confirmation process to something closer to what the framers intended – one in which one political party in the Senate doesn’t rob the president of one of his or her fundamental powers in broad daylight. After that, perhaps the parties can come together to return some semblance of normalcy to the process.
Like Pavlov’s dog salivating upon hearing a bell ringing, Mitch McConnell shouldn’t be faulted for reacting to stimulus in a predictable and natural way. It’s just time that Democrats and voters got aggressive about taking away the bell.
Correction: A previous version of this article incorrectly described Ketanji Brown Jackson's confirmation to the Supreme Court. She is the first Black woman to be confirmed.