Senate Minority Leader Harry Reid took to the pages of the Washington Post recently to write about Republican efforts to block any nominee to replace Justice Scalia. In drearily predictable fashion, the op-ed is headlined, " For the good of the country, stop your nakedly partisan obstruction."
There's a case to be made that our judicial confirmation process is broken, and that partisan politics are the main impediment to getting a justice confirmed. However, Harry Reid, Joe Biden, President Obama and their fellow Democrats are the ones who broke the process in the first place, and if they don't like that the GOP is holding up the process, they're just just reaping what they sowed.
Ironically enough, the last Supreme Court nominee to slide through the Senate without partisan objections was Scalia. Then Joe Biden happened. If there's any one person who is single-handedly responsible for wrecking the judicial confirmation process, it's the current vice president and president of the Senate. I touched on his contributions here in a piece on his career legacy for the magazine in October:
In the eighties, Biden was known for two things. First, he presided over Robert Bork's Supreme Court confirmation hearings. The year before Biden took over the chairmanship of the Senate Judiciary Committee, Antonin Scalia had been confirmed by a vote of 98-0. Biden initially pledged support for Bork. "Say the administration sends up Bork, and, after our investigations, he looks a lot like Scalia. I'd have to vote for him, and if the [special interest] groups tear me apart, that's the medicine I'll have to take," he told the Philadelphia Inquirer. But under Biden's leadership, the Bork confirmation hearings were a circus of unprecedented and unjustified personal attacks. They succeeded in keeping Bork's powerful legal mind off the Court, hugely consequential to conservatives and liberals both. As a practical political matter, it didn't affect the immediate balance of power on the Court. Similar tactics failed to derail the next conservative nominee, Clarence Thomas. But Biden's legacy is such that even liberals now use the term "borking" as a pejorative. It's not a stretch to accuse him of wrecking the judicial nomination process—Biden is the reason once-routine judicial appointments now bring Congress to a halt. It's probably not coincidental that the grandstanding involved in the Bork hearings served to elevate Biden's national profile as he ran for president in 1988.
Had a towering figure such as Bork rightfully been appointed to the high court, there's little doubt that it would have have changed America for the better.
More recently, when he was Senate Majority Leader at the end of the Bush administration, Harry Reid took dramatic action to prevent President Bush from making any appointments whatsoever. Democrats were frustrated by some of Bush's recess appointments, especially John Bolton as U.N. ambassador. But in fairness to Bush, the Democratic Senate's partisan obstruction was completely out of hand. In late 2007, the Harry Reid-led Senate had a backlog of more than 200 appointments that it had failed to act on, including dozens of judges. In order to prevent Bush from filling any of those slots with recess appointments, Reid started holding 30 second "pro-forma" sessions over the holidays so the Senate would technically be in session and the president would be constitutionally prohibited from making recess appointments.
As if this wasn't bad enough, then Barack Obama came into office and tried to to blow up the consensus on how it was possible for Senate to block recess appointments. Despite Republicans not going into session for any more than three days to prevent recess appointments, in 2012 Obama went ahead anyway and made three recess appointments to the National Labor Relations Board, arguing that the 30 second pro forma sessions Democrats had recently embraced were illegitimate now that Republicans were using them. (In an amazing act of hypocrisy, Reid publicly supported Obama's decision to ignore Congress holding pro-forma sessions.)
And far from being an issue of simple partisan gridlock, one of Obama's NLRB recess appointments, Craig Becker, was such a radical labor lawyer he'd already been rejected 52-33 vote by the Senate, with even a handful of Democrats voting against him. However, Becker was such a favorite of unions (who spent $400 million helping Obama get elected) that the president appointed him anyway.
In 2014, the Supreme Court ruled that Obama's recess appointments, in spite of Congress technically being in session, were unconstitutional. Again, this ruling was not a partisan issue. It was a unanimous decision, authored by liberal justice Stephen Breyer.
There are legitimate reasons to bemoan partisan gridlock and the lack of comity in Congress about these matters. But Harry Reid is in no position to suddenly complain, as he does, that "the Senate would sabotage the highest court in the United States and aim a procedural missile at the foundation of our system of checks and balances."
For decades now, the current leaders of the Democratic party have show zero respect for either the spirit or the letter of the Constitution when it comes to presidential appointments and the Senate's advice and consent role in the process. And given their behavior, they have no right to expect Republicans to now show them the respect and deference they themselves have long refused to grant.