With the death of Antonin Scalia came the death of civility in the Senate.
Civility, to be sure, had been on life support for some time. It took a body blow when Sen. Charles Sumner of Massachusetts was caned in 1856 by Senator Preston Brooks of South Carolina. It barely survived the Supreme Court confirmation hearings of Robert Bork (who was defeated) and Clarence Thomas (who today sits on the high court).
But when Scalia died in the winter of 2016, the Republicans who controlled the Senate, and who deplored everything about Barack Obama, moved with lightning speed to assure that the 44th president would not have a chance to replace the revered conservative jurist.
The swiftness of that decision has been known for more than three years. But the maneuvering behind that decision provides some of the most riveting details of New York Times correspondent Carl Hulse’s “Confirmation Bias,’” a gripping tale of insider Washington with implications far beyond the capital and far beyond our own time.
Here, in brief, is how the Republican offensive unfolded. Sen. Ted Cruz, reviled even by his Republican colleagues, was set to move to close down any Obama nomination. But GOP leaders agreed they could not let that happen. Any initiative begun by the snarling Texan would be tainted and eventually discredited. So Senate Majority Leader Mitch McConnell swept in, arguing that “this vacancy should not be filled until we have a new President,” dooming Merrick Garland’s chances for confirmation before he was even nominated.
The effect was to widen the partisan divide, to weaponize the confirmation process, to enrage Democrats and to alter the rhythms of conventional Washington practice.
‘’It was an act of outrageous audacity,’’ Hulse writes. “Virtually on his own, without consulting a single elected colleague, Mitch McConnell had decided to deny the Democratic president his right to fill an open Supreme Court seat.”
Even then, the name on the lips of those in the Donald Trump campaign inner circle was Brett Kavanaugh; they itched to retain that opening for him. The lawyer at the center of that circle was Donald McGahn, later to win notoriety for his refusal to appear before a House committee.
Kavanaugh would end up being Trump’s second nominee, but the drama had been set in motion. It didn’t help the Democrats’ cause that Joe Biden, unbidden and unrestrained, was on the record saying that if a Supreme Court vacancy occurred in the last year of George H.W. Bush’s term, the president should not name a nominee “until after the November election is completed.”
At the heart of this dispute, and the many that followed, was a vital question of constitutional law and congressional convention: Should lawmakers weigh ideology when considering confirming judges, or is their role merely to assess a nominee’s qualifications? Here views change with elections; those out of power lean toward ideology, those with a party colleague in the White House lean toward qualifications. And so judicial nominations have become bitter battlegrounds.
Much of what Hulse sets out is familiar to those following the news — the banning of filibusters for judicial nominees, once considered by Republicans but eventually embraced by Democrats, for example. When that gambit was later applied by Republicans to Supreme Court nominees, Democrats were enraged.”
Hulse tells us that McGahn welcomed applying this change in Senate procedure, known as the “nuclear option,” to the nomination of Neil Gorsuch because in that episode the ideological balance of the high court was not at issue; Gorsuch represented a conservative replacing a conservative on the court. Cynically but shrewdly, McGahn understood it was better to have the nuclear option in place for the next confirmation fight, when the court could be moved sharply to the right.
And it was. Enter Kavanaugh, a magnet for Democratic criticism even before the emergence of charges of youthful sexual harassment. The result was the most explosive Senate hearings since Anita Hill’s accusations against Thomas.
Hulse gives us little new insight on Kavanaugh’s private life and the accusations against him; that will have to await a book now in preparation by his New York Times colleagues Kate Kelly and Robin Pogrebin, whose “The Education of Brett Kavanaugh” is scheduled for publication in early October , the day after the court opens its fall session. But Hulse does provide us with an assessment of the impact of the Kavanaugh hearings, and it is a searing judgment.
“In the end, both sides believed that the warfare over the courts and Kavanaugh played to their immediate benefit — probably the worst possible outcome for the Senate, the Supreme Court, and the badly broken confirmation process,” he writes. “The nation’s governing institutions were left facing severe challenges to both their credibility and their ability to assure the public they were acting on behalf of all Americans.”
Sadly, that assessment rings true. The ultimate victims of the wars over the courts may be the Americans of the future. They will look back on this book, and the episodes it chronicles, with wonder, and with disappointment and disdain.
CONFIRMATION BIAS: Inside Washington’s War Over the Supreme Court, from Scalia’s Death to Justice Kavanaugh
By Carl Hulse
Harper, 314 pp. $28.99David Shribman, for a decade the Globe’s Washington bureau chief, is a nationally syndicated columnist.