How Democracies Die

by Steven Levitsky

On March 16, 2016, President Barack Obama nominated appellate judge Merrick Garland to fill Scalia’s seat. No one doubted that Garland was a qualified candidate, and by all accounts he was an ideological moderate. But for the first time in American history, the U.S. Senate refused to even consider an elected president’s nominee for the Supreme Court. As we have seen, the Senate had always used forbearance in exercising its advice and consent in the selection of Supreme Court justices: Since 1866, every time a president had moved to fill a Supreme Court vacancy prior to the election of his successor, he had been allowed to do so. But the world had changed by 2016. Now, in a radical departure from historical precedent Senate Republicans denied the president’s authority to nominate a new justice. It was an extraordinary instance of norm breaking. Within a year, a Republican was in the White House and Senate Republicans got their wish: a conservative justice nominee, Neil Gorsuch, whom they quickly approved. The GOP had trampled on a basic democratic norm—in effect, stealing a Supreme Court seat—and gotten away with it.