Hyperpartisanship surrounding SCOTUS nominees has transformed selection process, scholar says

LAWRENCE — Republicans applauded President Donald Trump's nomination of federal district court judge Neil Gorsuch to replace conservative justice Antonin Scalia, who died in 2016, but the hyperpartisanship in Congress has likely changed the traditional nature of the confirmation process, said a University of Kansas political scientist. 

Majority Leader Mitch McConnell gambled and led an effort that allowed Senate Republicans to block President Barack Obama from filling the seat with his own nominee, Merrick Garland, before Obama's term expired and Trump took office. The Supreme Court has operated with only eight justices since Scalia's death.

Patrick Miller, assistant professor of political science, is available to comment on the issues surrounding Gorsuch's nomination process and what might occur in the Senate, especially after Republicans successfully blocked Garland's nomination before Obama's term expired. Miller in 2016 talked about how partisanship and dysfunctionality would test the American political system surrounding replacing Scalia, and he pointed to the possibility that Senate Republicans would ignore Obama's nomination.

Miller has written journal articles on national politics and attitudes of partisanship, and his research expertise has appeared in numerous media publications, including The New York Times, Christian Science Monitor, Chicago Tribune, Atlanta Journal-Constitution and Miami Herald.

Q: It seems to this point that the Republicans' gamble paid off, correct?

Miller: Republicans are in a much better position today to replace Scalia with the nominee of their choice than they were a year ago, given that Republicans now control the White House and the Senate, albeit with a reduced majority in that chamber after the election. So from that angle, the gamble that McConnell made on refusing to give Garland a vote in the Senate paid off.

However, that does not necessarily mean that Judge Gorsuch will have a clear path to being confirmed. The Senate has a tradition of deference to the Supreme Court nominees of presidents in that it has traditionally been the bipartisan consensus that those nominees should be given a vote and confirmed. With some exceptions where a nominee has been extremely controversial, that has been the norm. But Democrats can credibly argue now that McConnell killed that norm with his refusal to allow a vote on Garland. McConnell fabricated a fake "rule" in the Senate about presidents not having Supreme Court nominations in the last year of their term, and he and other GOP senators misrepresented that to the public as a "tradition" or "norm" in the chamber. One need only look back to President Reagan's nomination of Justice Kennedy to find precedent for final year Supreme Court appointments.

As a political strategy, though, McConnell's move paid off in the sense that Garland was never given a vote, and now Trump can nominate a replacement. But what McConnell also arguably did was to absolve Democrats in the Senate of any obligation to follow the traditions of the chamber in how Supreme Court nominations are handled.

Q: So it's possible in the long run that the strategy has created a more difficult environment for getting floor votes on Supreme Court nominees?

Miller: Indeed, McConnell arguably created a new norm in the chamber where partisanship takes precedent over bipartisan consensus and norms. We may already have seen the effects of this. Senate Minority Leader Chuck Schumer yesterday stated that any Supreme Court nominee should be able to win 60 votes in order to be confirmed.

There is no tradition of a 60-vote threshold for the confirmation vote itself, so Schumer may be making up a new "rule" just as McConnell did to suit his political strategy. Indeed, if Schumer wanted to invent a new rule that no president should be allowed a Supreme Court nominee unless he or she wins the popular vote, he need only point to McConnell's actions around Garland as precedent for such a move.

Q: So, it seems possible this episode could be somewhat historic and significant for the future of American politics?

Miller: Ultimately, we may look back on the Garland nomination as a seminal moment for the Senate where partisanship killed the tradition of bipartisan consensus around the Supreme Court nomination procedure. Arguably, there are no such norms of deference or civility left after Garland, and no standard to hold Democrats to after McConnell effectively removed that. Thus, if Democrats resort to the filibuster to stop the Gorsuch nomination, there is arguably little room for anyone to complain about that move given the hyperpartisan reality that American politics is in at the moment. At that point, we may see serious debate in the Senate about the so-called “nuclear option,” or eliminating the ability of a Senate minority to filibuster Supreme Court nominations.

To arrange an interview with Miller, contact George Diepenbrock at gdiepenbrock@ku.edu or 785-864-8853.