The Disgraceful Behaviour of the Senate on the Supreme Court Opening

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The incredible gravity of the U.S. Presidential election pulled all of our attention towards Donald Trump and his scandalous behaviour.  His unexpected victory will have us reeling for weeks to come. His forthcoming presidency will probably be a permenant distraction. Just as his presidential primary rivals failed to get their message across, so other pressing issues will surely be crowded out by a general obsession and fascination with Mr Trump.

Here is one such issue that has not received the attention it deserves: the Republican-controlled Senate’s refusal to confirm, or even hold hearings on Merrick Garland, President Barack Obama’s choice for the United States Supreme Court.

The open seat was caused by the sudden death of Associate Justice Antonin Scalia, who was notoriously conservative. Ordinarily his replacement would have been chosen by Barack Obama, the sitting president. We might have expected the ideological make-up of the court to have shifted, as Obama replaced a conservative judge with a liberal one.

But instead, the Senate blocked the appointment, in the hope that they would secure a more conservative judge from a Republican president.

This was surely not what the men of the eighteenth century expected would happen when they wrote the United States’ founding documents, stating that the Senate would “advise and consent” on presidential nominees.

The choice to disengage was one that saddled the Supreme Court with an even number of Justices, meaning decisions could be tied 4-4. Moreover, it was a partisan abuse of procedure. A short-circuiting of democracy. It was also a denial of the will of the people, who might reasonably have expected a Supreme Court vacancy to be filled by President Obama, the man they convincingly elected to office on two occasions.

It was a dereliction of duty. It was wrong.

It was also a gamble. And one that, with the election of Donald Trump and a Republican majority Senate, appears to have paid off handsomely.

This is a terrible thing to have happened. Worse, it was done without shame, without apology, without pretence, even. The electorate should have meted out a severe electoral punishment to the party and the senators who chose to do this. Instead, intransigence, polarisation and partisanship has been incentivised in a way that would appall us if it were part of any other negotiation.

It is a despicable, disgraceful thing to have happened. It could have a generations-long effect on the American people. And there is nothing anyone can do about it.

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