The Supreme Court has grown back to its proper size, and the United States Senate has continued to get smaller, locked in a long process of shrinking, on issues both foreign and domestic, from the days when it could with a straight face claim to be the world’s greatest deliberative body.
We saw the latest instance of this a week ago, when President Donald Trump reacted to the Syrian government’s atrocities by launching missile strikes. Senators had a variety of responses—praise, calls for even more of the same, some questions about the strikes’ effectiveness, a smattering of opposition. But there were virtually no voices insisting that the choice to take military action is constitutionally the province of Congress, not the executive.
It doesn’t matter who is president or which party is in power: The single most important element in the United States Constitution is that which leaves to the people, through their representatives, the sole authority to determine whether or not to engage in war. “War” is determined not by length of time or geographic boundary, not by whether it’s accompanied by a formal declaration or a granting of authority for the use of military force: When one bombs another country, that’s war.
And yet Presidents Bill Clinton, George W. Bush, Barack Obama and now Trump have all ignored Congress or used ridiculously broad interpretations of previous congressional actions to take it upon themselves to launch military actions. Both the House and Senate have been complicit in failing to assert Congress’s constitutional war powers, but it is the Senate that has long held itself out as the more significant player in both the defense and foreign policy arenas, and it was the Senate’s relative silence on that point last week that was most telling.
Failure to act when action seems called for is bad enough. But not quite as bad as the total absence of adult behavior the Senate displayed during the recent Supreme Court nomination fight. The drawn-out battle, the pouting refusal by Republicans to even consider Obama’s nomination of Merrick Garland and the retaliatory filibuster by Democrats against Neil Gorsuch, brought into sharp focus how much damage the current members of the United States Senate have done to the reputation of an institution that once took seriously both its collective constitutional responsibilities and the obligation of each individual senator to independently evaluate alternatives and act as their own consciences dictated.
The Supreme Court fight was never just about Gorsuch, whose nomination was almost unanimously opposed by Democrats, primarily for his crime of being nominated by a Republican. Nor was it about Garland, whose nomination received no consideration at all because he was nominated by a Democrat. Garland and Gorsuch are both intelligent and competent jurists who tower intellectually over those who by whim and pique and party tribalism sat in judgment on their futures.
The bigger issue is about how the Senate has devolved to a point where it treats nominees for judgeships as though they were candidates for legislative office. Nobody should want a judge at any level who is able to tell you the outcome of a case before hearing it. And yet both Republicans and Democrats in the Senate want precisely that: They want judges who they can be sure will vote with them, whether on abortion, campaign finance or gay marriage. Looking to judicial reasoning and judicial temperament as the standards by which Supreme Court justices should be evaluated seems an incomprehensible concept to the modern Senate. It’s as if senators, judging others by their own standards, cannot imagine that anyone might come to a legal conclusion that runs counter to his or her own personal preferences. If justices today seem increasingly partisan perhaps it is because they have been selected on the basis of partisan preference.
Consider, by contrast, the way earlier Senates dealt with Supreme Court nominations: Justices John Paul Stevens and Sandra Day O’Connor were confirmed unanimously. Even the decidedly non-bland Antonin Scalia was confirmed unanimously. Felix Frankfurter and William O. Douglas were confirmed with no noticeable dissent. Two would-be justices, nominated by President Richard Nixon and rejected by the Senate, Clement Haynesworth and G. Harrold Carswell, were supported or opposed on bipartisan votes.
That all changed in 1987 when Democratic senators, led by Ted Kennedy, decided to fight Ronald Reagan’s nomination of Judge Robert Bork, the opposition based almost entirely on concerns that Bork would support policies Reagan favored. It was a political, not a judicial, calculus, and while almost every Republican supported Bork, every Democrat in the Senate except for two voted not to confirm. (Full disclosure: although I was in the House and had no vote in the matter, I personally opposed Bork’s confirmation for different reasons.) This was the beginning of a trend that has turned one of the most important decisions of our democracy into a partisan boxing match.
By the time Samuel Alito was nominated, the partisanship had become locked in. Only four Democrats supported Alito; only one Republican opposed him. When Sonia Sotomayor was nominated for the court by Obama, the Republican attack machine was in full gear even before it was known whom Obama would nominate. It didn’t matter: Just as Mitch McConnell and Republicans opposed Garland’s nomination and Democrats opposed Gorsuch, all that mattered any more was that the nominator belonged to the other club. Quaint concerns like education, judicial temperament, constitutional understanding and quality of reasoning became of little interest to the Senate.
The partisanship is destroying the Senate in other ways, too. When Obama became president, Senate Republicans, led by McConnell, who had vowed to make the Obama presidency fail, turned to the use of the filibuster to prevent confirmation of high-level appointees to the federal government’s departments and agencies. Frustrated, Democratic Majority Leader Harry Reid upended one of the last vestiges of respect for minority views by changing the Senate’s rules mid-session and eliminating the filibuster as an option. The two exceptions to the change were the continued ability to use filibusters against Supreme Court nominations and in opposition to proposed legislation.
As if Reid’s nuclear option reaction to McConnell’s strident obstructionism wasn’t enough, McConnell and Republicans this year eliminated the right to filibuster Supreme Court nominations, even though these are for life-time positions of enormous power which rightly deserve prolonged and serious consideration. And, like Reid, McConnell changed the rules in the middle of the game rather than at the beginning of a new Senate session when all subsequent issues would proceed under the known rules. There seems little doubt that despite what he now says, if it becomes necessary, McConnell will also eliminate, mid-session, the filibuster against legislation that he and his White House “boss” put forth. And yet McConnell amazingly still considers himself an institutionalist.
So, who started it? It is a habit now, in this hyper-partisan age, for Republicans and Democrats alike to blame all sin, error and failure on “the other party.” But I’m sick of hearing the blame game from those who are supposed to be the caretakers of democracy. The dysfunction is both bipartisan and embarrassing. To watch the Senate today is like watching children in a sandbox, a daily circus of name-calling, finger-pointing, cries and counter-cries of “he started it.” One wants to send McConnell to stand in the corner and order Chuck Schumer to go to his room.
It would be tempting to view this dysfunction through the lens of inept or wrongheaded leadership. But, unfortunately I think it goes deeper than that. Reid is gone; if McConnell and Schumer were to leave as well, it is not likely much would change. The rot of partisanship, the disregard for civil and fair debate, the cavalier attitude toward rules and traditions so easily disposed of, has permeated the entire institution.
Think of this, if you will, not as an attack but as an appeal. When it applied to our government, “American exceptionalism” had only one legitimate meaning: That this country had a system in which enormous power was left in the hands of the people themselves. A peoples’ Congress, with members elected from specific constituencies, was created to see to it that wise and judicious deliberation, and consideration of constituents’ views, would go into the making of any important government decision. America’s founders could not have imagined a United States Senate so diminished, so reduced to party tribalism, so oblivious to the responsibilities each member bears.