I've heard many times that the seat occupied by Justice Neil Gorsuch is a "stolen" seat on the Supreme Court. Let's break that down. The Gorsuch seat is stolen only if someone else was entitled to it. Was anyone else entitled to it?
That's not a hard question. We know what's required to be entitled to a Supreme Court seat -- nomination by the President and confirmation by the Senate. Was anyone else nominated and confirmed for the Scalia vacancy? No. So the seat didn't belong to anyone else and wasn't stolen by the republicans when Gorsuch took it.
Of course, I know what the democrats and their allies in the mainstream media mean when they say this is a stolen seat. They mean Garland should have been confirmed. But that's wrong, too. Is the Senate obligated to confirm every qualified nominee? Has the Senate always confirmed every qualified nominee? The answer to both questions is "no." The republican Senate was under no obligation to confirm Garland.
"But he didn't even get a hearing," you say. I tend to agree that the republicans should have given Garland a hearing. As I said at the time of his nomination, I thought the republicans should have given Garland the Bork treatment. Slow walk his confirmation and then reject it. For political reasons, they decided to skip all that and simply say "let's leave this seat up to the people in the election." Even though I think this was a less than ideal way to reject Garland, that doesn't change the fact that the republican Senators were perfectly entitled to reject him, which they did.
Here's the fundamental point that the democrats and their allies in the mainstream media seem to miss -- elections have consequences for the makeup of the Supreme Court. That principle applies to both elections for President and elections for the Senate. I say democrats "seem" to miss this point because they merely pretend to miss it. They actually understand it all too well. In fact, that was the very game they were playing with the Garland nomination.
You see, they know that the only sure way to move the Court either to the right or to the left is to control both the White House and the Senate. When control of the White House and Senate are split, then there might have to be compromise, and it's much harder to move the Court very far. The democrats learned this lesson very well during the Reagan administration. President Reagan appointed Robert Bork, who would have moved the Court to the right. The democrats controlled the Senate, so they rejected Bork, who was eminently qualified, on ideological grounds. Reagan was forced to nominate Kennedy, who turned out to be the quintessential moderate. Imagine how much different our Supreme Court precedent would look today if Reagan could have forced Bork instead of Kennedy on the democrats. That's the importance of controlling the Senate.
So when the late great Justice Scalia died unexpectedly late in President Obama's second term when the republicans controlled the Senate, all of the players had political decisions to make. President Obama had the first decision to make. He could either nominate a liberal or a true moderate (like Kennedy). If he nominated a liberal, the nomination almost surely would be rejected, one way or another, and the open seat would become an issue in the upcoming election, during which the democrats felt sure they would retain the White House and hoped to regain the Senate.
If Obama nominated another Kennedy, the republicans would have had a tough choice. They could either accept another Kennedy to replace Scalia, which would move the Court incrementally to the left, or they could reject the moderate nominee and roll the dice on the election. If Clinton were elected (as most expected) and the republicans retained the Senate, they'd be right back where they started when Scalia passed. But if the republicans lost the White House and the Senate, then a moderate would be off the table. They would get another Sotomayor. Replacing Scalia with a Sotomayor would be a drastic shift to the left.
President Obama made the key decision. He decided to appoint a liberal. I know a few of you will say "but Garland is a moderate." Please, don't even. I know the left says that, but he's a moderate like Roberts is a moderate, not like Kennedy is a moderate. Swapping out Scalia for Garland would have been a huge shift to the left. So Obama intentionally chose to nominate a jurist he knew the republicans would reject. And why shouldn't he? Clinton was sure to win, so, worst case scenario, the liberals would be, after the election, right back where they started from. Why should Obama agree to appoint a moderate as Reagan had been forced to do?
Of course, we know what happened. Scalia's open seat became, perhaps, the most important issue in the presidential election. I say that because it welded the right wing of the republican party, especially the religious right, to Trump in a way that perhaps nothing else could. Trump masterfully put out his list of potential conservative nominees and promised to nominate from that list. And he delivered.
I understand that this is the unimaginable worst case scenario for the democrats. They rolled the dice on the election and the dice came up craps. But this was the risk that Obama took when he decided to nominate a liberal. It looked like a good bet at the time, the odds were in his favor, but he lost his bet.
So did republicans steal a Supreme Court seat? No, the democrats gambled it away.
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