Senate Republicans are wielding their power to control the judicial branch. It will do potentially irreparable harm to democracy

Almost one year into the Trump administration, we have fallen into a disturbingly familiar pattern of looking on as the daily news cycle tracks and parses the president’s latest tweets, decrying the fact that this is not the way things are done around here. But as we look the other way, it is the Senate that he has chosen to erode norms and conventions in how judges are staffed to the federal courts, and which is breaking down our democracy at every turn.

The constitution requires that the Senate provide “advice and consent” on nominations made by the president. But long before Trump was elected, Senate Republicans crossed the ultimate line when the Senate majority leader, Mitch McConnell, calling it one of his “proudest moments”, led his caucus to refuse to hold a hearing for Chief Judge Merrick Garland, President Barack Obama’s carefully chosen supreme court nominee who had even won accolades from the right.

Some even opined that if Hillary Clinton were to win the presidency, rather than compromise on a supreme court pick, they would simply hold the seat open for another four years, a striking statement which, taken to its natural conclusion would mean that we could only fill supreme court vacancies when the Senate and presidency are held by the same party – certainly not what the founding fathers had in mind.

Should it be such a surprise, then, that with their party in control of both the House and the Senate, Republicans have chosen to wield their power to control the judicial branch, simply because they can and even if it does potentially irreparable harm to our democracy?

We need not look to the extreme example of refusing to seat a supreme court nominee to see how Senate Republicans are baking the politicization of the courts into the process and threatening the independence of the judiciary.

Three weeks ago, having wholeheartedly endorsed the importance of the blue slip tradition that requires both home-state senators to submit a literal blue slip saying they support proceeding with the nomination, Senator Chuck Grassley, the Senate judiciary committee chairman, caved to pressure and scheduled confirmation hearings for nominees lacking support from their home-state senators. The blue slip is not some esoteric Senate rule. It is a 100-year tradition and is one of the few tools for the minority party to provide “advice” and check the president. It is a mechanism whereby two senators from a given state, having been elected by the voters of that state, typically get input into who the judicial nominees are for their state’s federal courts.

And very often, senators employ commissions of local attorneys to make recommendations on who the nominees should be, thereby inserting into the process a sense of that state’s priorities and values. It is understood as part of this process that a nominee from Texas may not look like a nominee from New York who is in turn different from a nominee from Montana. And indeed, this tradition of requiring the go-ahead from home-state senators held strong during the Obama administration, so much so that 18 nominees lacked the support of at least one home-state senator, and those nominations did not receive further consideration.

Now in his rush to pack in as many judges as he can, Grassley has indicated that he would move forward on hearings for nominees where he felt that a withheld blue slip was being used as a tool of obstruction. Never mind that several senators have complained that the White House has unilaterally chosen nominees and they have not even been consulted. Senator Grassley has now inserted himself as the sole arbiter of how much advice and consent is sufficient. Thus far, Grassley has distinguished between district court nominees and circuit court nominees, noting that he will honor the blue slip process for district court nominees. But given the trajectory of the Senate majority, one could reasonably wonder how long it will be before this opportunity for checks and balances simply becomes too much of a nuisance in the path to consolidate power.

Not content to squelch the voice of the minority in filling existing vacancies, the Federalist Society – the conservative group closely advising the White House on judicial nominations – co-founder Steven Calabresi recently called for the creation of hundreds of new judgeships with the express purpose of “undoing the judicial legacy of President Barack Obama”. It is a call for conservatives who are inclined to follow their id to take that desire to another level. They control the executive and legislative branches – this is the way to ensure that they will control the third branch of government for generations to come.

This form of control seems even more insidious because they know that many Americans don’t pay much attention to the courts. For the time being, the Calabresi proposal has been criticized by several prominent conservatives. But in an environment where the Senate majority continues to exploit every advantage it has – abandoning the blue slip, stacking multiple circuit court nominees in a single hearing thereby constricting the time for questions, moving forward on nominees before the American Bar Association has completed its review and advancing even the nominees rated unanimously not qualified by that body – it is hard to see where the breakdown of norms ends.

And notably, as the Trump White House picks judges, we see a stream of nominees who are whiter and more male than they have been in decades. Indeed, there are seats where a white male replaced a previous nominee who was a woman and/or person of color who Senate Republicans made sure never got a hearing during the Obama administration. The trend is toward a bench that will soon not look like the litigants before them.

Americans need to realize that so much of what we care about – reproductive rights, criminal justice, the quality of our air and water, whom we get to marry, our conditions of employment – runs through the courts. We need to guard the judicial nominations process so that the third branch doesn’t get co-opted in the slide to democratic breakdown.

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