Trumpocracy: The Corruption of the American Republic

by David Frum

law professor at Yale. George W. Bush had been made president, Ackerman argued, only by the intervention of a conservative Supreme Court. If Bush then appointed further conservative justices, the court would be “packing itself.” For that reason, “when sitting justices retire or die, the Senate should refuse to confirm any nominations offered up by President Bush.”14 Ackerman limited his boycott idea to the Supreme Court itself, but Senate Democrats did him one better. No Supreme Court vacancies opened in George W. Bush’s first term, but a great many appellate court seats did. In a closely divided Senate, Democrats successfully blocked the consideration of ten of these appointees—an unprecedented move. Republicans struck back after gaining Senate seats in the election of 2004. They threatened to end the Senate minority’s power to filibuster lower-court judicial nominations. The two parties reached a deal. The appellate-judge filibuster was preserved in theory, but with an understanding that the minority would use it only in “extreme cases.” By then, the most controversial of the Bush nominees had removed themselves from consideration, so Democrats could score the exchange as a victory. This backstory explains why Senate Republicans a decade later felt entitled to use unprecedented tactics of their own against President Obama’s final nominee to the Supreme Court, Merrick Garland. Republicans refused Garland even a hearing, never mind a vote, inventing a new principle against...