Breaking the Rules to Steal a Seat

Daines and Republicans shouldn’t talk about Supreme Court fairness

By Mike Jopek

A year ago, Judge Merrick Garland was nominated by a Democrat to serve on the Supreme Court. Republican Senate leaders quickly dismissed the idea, saying they wouldn’t meet the nominee or hold confirmation hearings, and they refused a vote. That politics held true most of last year.

A year ago in March Sen. Steve Daines wrote, “I will oppose any hearing or votes for President Obama’s nominee to the Supreme Court.”

Daines continued, saying the next Justice would have “far-reaching impacts to our country for generations.”

The Billings Gazette wrote an editorial that month entitled, “Sen. Daines, do your job,” saying in part “Daines’ excuses aren’t just weak, they’re inaccurate.” The Gazette opinion ended by writing, “Sen. Daines, it’s ridiculous that we have to beg you to do your job.”

Daines and Republicans blocked the Democrats nominee for a year, because they could. They gambled that the next president would nominate a more party-ardent nominee.

Now Daines appears willing to break the Senate rules to get his judge onto the court. Early last week, the Republican nominee hadn’t secured enough procedural votes to end debate.

Sen. Jon Tester voiced big concerns over the nominee, Judge Neil Gorsuch, for the court.

Tester said, “I am deeply concerned that dark money will continue to drown out the voices and votes of citizens. Over the years, Judge Gorsuch gave corporations the same rights as a nurse in Plentywood, a teacher in Kalispell and a farmer in Fort Benton.”

Tester continued, “Not only does Judge Gorsuch believe corporations deserve the same rights as people, in Hobby Lobby, he decided that the rights of corporations outweighed the rights of Montana women.”

Tester says the Constitution’s Advice and Consent power for a Supreme Court nominee holds the most important decision a senator can make.

For a year, America enjoyed a 4-4 ideologically split court. Many don’t like to think of the court as partisan, but clearly a 4-4 ideologically balanced court worked decently.

Republicans like Daines sought to change that, because they could.

Just as Daines blocked confirmation hearings last year, Republicans are likely to do what it takes to win. They’ll transform the ideologically balanced 4-4 court, to tilt 5-4 favoring Republicans.

Early last week, Gorsuch hadn’t yet garnered the Senate’s 60-member cloture provision ending the confirmation debate. Midweek it felt as likely that Democrats cave on cloture, as it did that Republicans changed the rules.

Daines and Republicans trashed last year’s confirmation process by refusing to hold hearings. They shouldn’t talk about Supreme Court fairness.

Former Montana Supreme Court Justice James Nelson wrote that it’s no surprise that out-of-state political ads promoted Gorsuch. Nelson said Gorsuch would protect “limitless corporate political speech,” over transparency.

For a robust judicial advertising campaign, $10 million was spent this year supporting Gorsuch, while $7 million was spent last year opposing Garland. Yet hardly anyone knows the identity of this big money. That kind of political money wants something.

Supreme Court nominations have been contentious for hundreds of years. The Senate voted down President George Washington’s choice for Chief Justice.

Historically the Senate fails to confirm more than one in five Supreme Court nominees.

Fifty years ago, Republicans filibustered a Democratic president’s nominee for chief justice. Twenty years later Democrats blocked a Republican president’s nominee after hearings.

Tester held many townhalls across Montana this year, reportedly hearing from citizens about the Supreme Court. Daines, so far this year, refuses to hold face-to-face townhalls, instead relying on alternative methods for decision input.

If Daines breaks the Senate’s cloture rule to confirm their Supreme Court nominee, it’ll be a first. With lifetime appointments to this court, the political and policy reverberations would be profound, unforgettable, and ever lasting.

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