By David Harsanyi • The Federalist
If you’re under the impression that the system exists merely to facilitate your partisan agenda, it’s not surprising that you also believe it’s “broken” every time things don’t go your way. This is why so many Democrats argue that we should “fix” the Electoral College when they lose a presidential election and “fix” the filibuster when they run the Senate and now “fix” the Supreme Court when they don’t run the Senate.
During the Obama presidency, liberal pundits groused about the supposed crisis posed by a “dysfunctional” Congress. In political media parlance, “dysfunction” can be roughly translated into “Democrats aren’t able to do as they like.” Congress, as you know, was only “broken” when President Obama wasn’t getting his agenda passed, not when his party was imposing a wholly partisan, unprecedented health-care regime on all Americans.
In any event, the political establishment spent six years wringing its hands about subsequent GOP electoral success, which was an organic political reaction that strengthened separation of powers and reflected the nation’s ideological divisions. Although you’d never know it listening to political coverage, it meant the system was working just fine.
Yet many of the president’s boosters, including Ezra Klein, then at The Washington Post, began not only arguing that Congress was “broken” (bad) but that it was “fundamentally broken” (really bad!). By 2013, after Republicans had made gains in the Senate, Klein and others were arguing for increasing majoritarianism to “fix” the problem. It was the GOP’s “unprecedented obstructionism” (a euphemism for disagreeing with Obama on policy) that supposedly left them no other choice.
Now, if the majority of voters had been truly disgusted by “obstructionism,” the GOP would have paid a political price for their actions. The opposite occurred. Perhaps instinctively, voters wanted a more ideologically balanced Washington. So Democrats decided the system was the problem.
What we call “norm breaking” these days was referred to as “reform” during the Obama administration. “Reformers” like Klein and his allies would convince Senate Majority Leader Harry Reid, a man who once argued that weakening the Senate filibuster would “destroy the very checks and balances our Founding Fathers put in place to prevent absolute power by any one branch of government,” to use the “nuclear option” and blow up Senate rules on judicial filibusters so Obama could stack the courts.
“Thanks to all of you who encouraged me to consider filibuster reform,” Reid tweeted in 2013. “It had to be done.”
But then the unanticipated began happening. For one thing, the GOP won the majority and Sen. Mitch McConnell, despite immense pressure, refused to give Obama’s nominee Merrick Garland a vote. That was well within his authority as majority leader, his constitutional authority, and his ideological imperative to stop Democrats from transforming the Supreme Court into one that relied on empathy over the Constitution.
This tactic opened a seat for the next president. Then Donald Trump also won. Unexpectedly. And guess what’s broken now?
“The way we choose Supreme Court nominees is broken,” Klein laments, “Here’s how to fix it.”
Here is what Klein said back when he was a filibuster reformer:
Democrats, rather than filibustering themselves in service of a political point, would have weakened the filibuster on behalf of the next majority, whoever it may be. It could be a blow struck against themselves in service of the long-term health of the Senate.
Here’s what he says now as a Supreme Court reformer:
Here, in truth, is where the past few years have left us. The minority party no longer holds a scintilla of power over Supreme Court picks. The majority party can and will jam whomever they want onto the Court, where that person will serve for life.
“The institution is broken,” he said. “The filibuster rests on an unstable foundation,” he said. “Let’s talk,” he said. When it was convenient, his Twitter bio let two-million-plus followers know that he hated the filibuster. Now he’s concerned that the majority party is “jamming” through a nominee?
What Klein probably meant to say all those years was that the filibuster undermined a “healthy” liberal majority. Today, he couches concerns about the system in the supposed tribulations surrounding “life appointments” to the court. I don’t recall similar concerns regarding the lifetime appointments of Sonia Sotomayor or Elena Kagan, although perhaps they exist.
But that’s another debate. For me, at least, the more undemocratic the court is the better — and not merely undemocratic, but randomly undemocratic. Creating term limits does little to change the politics of confirmation, but it could do plenty to change the way justices approach their jobs. A term-limited judge, for example, is one who is concerned about a professional life after SCOTUS, and might act accordingly, meting out favors the way politicians do today.
In any event, there is simple solution: voters should assume that every president will name at least one Supreme Court justice and vote accordingly. The last president who didn’t was Jimmy Carter, and the one before him was Andrew Johnson.
Klein isn’t alone. Others, like Harvard’s Ian Samuels, are more straightforwardly partisan, proposing that the next Democrat candidate promise to add six justices to the Supreme Court to neutralize the power of the textualists and create a progressive court. He’s not alone. Although the Constitution doesn’t stipulate the number of justices needed, and Democrats are free to make such promises if they like, you’d think liberals would have learned their lesson during the Obama years.
The real anxiety driving liberals is the reality of President Trump getting another Supreme Court justice, the kind of nominee any conservative president would likely have picked. This person will presumably help constrain progressive policies because many of those policies rely on coercion and unconstitutional intrusions into personal freedom. Maybe it’s not the system that’s broken, but rather rather the Left’s agenda.
The arrogance of the age — maybe every age — is that intellectuals believe, by default, that they’re smarter, more moral, and more evolved than those who came before them. We often hear the Left gripe about the antiquated nature of the Constitution. It was Klein, after all, who once claimed that the Constitution was confusing document because it is old.
We can disagree about the usefulness of Enlightenment ideas. But when Klein contends that the “chaotic, ugly realpolitik that followed Justice Antonin Scalia’s death” necessitates a “fix,” he is being transparently partisan. Nothing is more chaotic than altering the rules every time you experience a political defeat. And nothing says realpolitik more than attempting to “fix” a system for practical political concerns when your ideological goals fall short.