The unpredictable and nasty presidential campaign has obscured other matters which deserve our attention. On March 16, President Obama nominated Merrick Garland to fill the vacancy on the Supreme Court created by the death of Justice Antonin Scalia. When the Senate returns from its August recess on Sept. 6, the nomination will have already waited 174 days for a vote.
This prolonged failure by the Senate to do its duty has no precedent in all of U.S. history. Every other nomination not withdrawn by a president has received a vote. The longest previous wait was 125 days for Louis Brandeis, appointed by President Woodrow Wilson in 1916. Bitter opposition to Brandeis was driven, at least in part, by his status as the first Jewish nominee. The Senate, however, after contentious hearings and debate, confirmed Brandeis — who went on to serve as one of the most respected justices in the court's history — 47-22.
Although Senate Minority Leader Harry Reid (D-Nev.) is threatening to use a procedural motion to force a vote on discharging the Garland nomination, no one now expects the Senate will actually act on the nomination itself before its scheduled adjournment on Oct. 7, which means it will not occur prior to the November presidential election.
Some have suggested that if Democratic nominee Hillary Clinton wins the presidency, the current Republican-led Senate will approve Garland on the theory that a Clinton nominee could be worse from their prospective. Action during the lame-duck session between the election and the inauguration of the new president seems unlikely, however. After blocking Garland on the grounds that the "people should decide," doing so would leave the confirmation process in the hands of senators who were defeated and some who did not seek reelection rather than those elected in the November election.
Also, it is quite possible that Clinton would prefer to name her own choice. It would be hard, under such circumstances, for the Senate to move the nomination during a short lame-duck session.
The new Congress, in January, will bring its own problems. If government is divided with one party in the White House and the other controlling the Senate, whatever nominee is named by a new president will face a difficult road. If a Republican Senate is faced with a Clinton nomination, particularly if that nominee is even more progressive than Garland, GOP senators may continue to drag their heels. If it's a Democratic Senate confronted with a Donald Trump nominee, Democratic senators may view that nomination as illegitimate given that in their view a rightful Obama-filled seat was swept out from under him. This could lead to further gridlock.
And if both the White House and the Senate are controlled by the same party, similar difficulties could arise in the form of a filibuster. Again, with either Democrats protesting the stolen seat or Republicans objecting to a Clinton nominee.
As a defender of the importance of the filibuster to functions of the Senate, including nominations, I would be distressed by partisan and prolonged filibusters in January against either party's Supreme Court nominees. This might understandably lead either party to revisit the use of the "nuclear option."
In November of 2013, the then-Democratic majority used a questionable parliamentary ploy to unilaterally reinterpret existing Senate rules to permit them to end filibusters with just a simple majority vote on judicial nominations. They exempted Supreme Court nominees because the Democratic leadership did not have sufficient votes to apply the new reading of the rule to nominations for the highest court. This is evidence that even as they twisted the rule at the time, they recognized its value and retained it for the most consequential situations.
I wrote at the time in The New York Times:
"The Senate Republicans, by blatantly and transparently obstructing President Obama's judicial nominations, have goaded the Democrats into an historic mistake. To reach understandable ends, they have adopted tragically flawed means. By use of the so-called "nuclear option," Senate Democrats have now established the principle that a simple majority in the Senate can change any rule at any time.
This could repeat itself in January with the same cast of characters, perhaps reversed. Whichever party is in the majority, faced with a long filibuster, would be sorely tempted to sweep the rule away and confirm their president's pick."
It would be hard to argue against them. Given the current balance on the court, the stakes could not be higher. And, of course, these are lifetime appointments, so the impact is apt to last perhaps for decades.
Most thoughtful senators realize that we need the filibuster to assure that the minority party, whichever it is, has some input into who sits on the court. Presidents have to consider support from some portion of the other party. This counterbalance has served us and the court well.
We should hope the ugly and divisive presidential election we are experiencing doesn't further poison the already hyper-partisan polarized Senate driving its majority to extreme and unwise means.