Shanna Singh Hughey

Never before has a political party categorically refused to consider a Supreme Court nominee.

In Ronald Reagan’s final year in office, Justice Kennedy was unanimously confirmed by the Senate.

Allowing this political stalemate to continue affects the day-to-day lives of countless Americans.

Aug. 6, 2009, was one of the best days of my professional life. A bipartisan majority of the U.S. Senate had just confirmed Sonia Sotomayor to serve as the nation’s first Hispanic Supreme Court justice. I joined my boss, Senate Judiciary Committee Chairman Patrick Leahy, and several of my colleagues in his private office near the Senate chamber while he telephoned her to offer his congratulations.

For months, my colleagues and I had worked day and night to learn everything we could about soon-to-be Justice Sotomayor. We read every judicial opinion she authored, every speech she ever gave, every Internet post that included her name. We had thoroughly prepared Chairman Leahy to lead her Senate confirmation process, and this phone call was its culmination. After months of hard work, the moment felt historic.

But the occasion was also routine. Justice Sotomayor’s confirmation followed a path remarkably similar to each justice she would soon join on the high court. She was vetted by the administration and nominated by the president. The Senate Judiciary Committee did its own vetting and held thorough hearings before reporting her nomination to the full Senate. After face-to-face meetings with the nominee and spirited floor debate, the majority of senators voted to confirm her.

The process worked as it should. It worked as it has for a century, regardless of which political party held the White House or the Senate majority. And then Justice Antonin Scalia died unexpectedly — in an election year — and launched the confirmation process into a partisan clash.

Mere hours after news broke of Justice Scalia’s death, Senate Republicans, urged on by nearly every Republican presidential candidate, vowed to block any nominee President Barack Obama put forward — regardless of qualifications or background. All 11 Republicans on the Judiciary Committee announced they would not hold hearings on any nominee; key Senate Republicans said they would not attend the get-to-know-you meetings with nominees that are typically a matter of courtesy. Democrats called “foul” and condemned what they view as wholesale obstructionism.

To the casual observer, this sounds like business as usual in Washington. In truth, it’s anything but.

Never before has a political party categorically refused to consider a Supreme Court nominee. Although election-year vacancies are rare, the Senate has filled them six times since 1900. And never in the decades since it started holding hearings on Supreme Court nominees has the Judiciary Committee refused to do so.

To those who say Democrats would throw up similar roadblocks if the tables were turned, it’s instructive to look to 1988. It was President Ronald Reagan’s term-limited final year in office, and Democrats held a 54-46 majority in the Senate when they considered Justice Anthony Kennedy’s nomination to the Supreme Court. The Judiciary Committee unanimously voted to send Justice Kennedy’s nomination to the full Senate, which unanimously confirmed him.

To argue this process is impossible or undesirable today is to advocate for a new normal — one where political gridlock impedes the work of the very branch of government the Constitution protects from political pressure. This may sound like a problem for the ivory tower, but it affects everyday Americans.

If Justice Scalia’s vacancy goes unfilled this year, the Supreme Court will function with only eight justices for two consecutive terms. In many of its most important cases, this will leave the court with two options: Decide the case by a 4-4 split, meaning the lower court’s decision stands and no national precedent is created, or wait to decide until the vacancy is filled. Allowing this political stalemate to continue means cases before the high court about voting rights, immigration, race-based college admissions and collective bargaining may have to wait, affecting the day-to-day lives of countless Americans through no fault of their own.

If the goalposts have moved in this way, we must recognize the shift. If this is a new normal, it is a new low.

A bipartisan panel of legal experts with extensive experience in the Supreme Court nominations process will discuss these issues at the Baker Donelson Event Center at noon on Friday, March 4. The event, hosted by the Nashville chapter of the American Constitution Society, with the Napier Looby Bar Association and the Stonewall Bar Association, is free and open to the public. Space is limited; RSVP by visiting https://www.acslaw.org/chapters/tn/nashville-chapter/upcoming-events.

Shanna Singh Hughey lives in Nashville and previously was a senior adviser and director of the Mayor’s Office of New Americans under Mayor Karl F. Dean. She served as nominations counsel to then-Senate Judiciary Committee Chairman Patrick Leahy (D-Vermont) from 2009 to 2011.