The Supreme Court has refused to review a Ninth Circuit ruling denying political parties the right to exclude nonmembers from participation in their primaries. Hawaii law requires an open primary, and under the Ninth Circuit decision, parties would bear the burden of showing that this requirement severely burdens their rights of association. In other words when parties must open their candidate selection processes to non-members, the infringement of that associational right is not, apparently, self-evident.

The Ninth Circuit decided this incorrectly. It misconstrues the controlling Supreme Court authority, and it disregards its own entirely inconsistent decision in Washington State Democratic Party v. Reed. It is revealing that the Court's panel’s denial of that inconsistency is tucked into a disingenuous footnote. Democratic Party of Hawaii v. Nago, 833 F.3d 1119, 1124 n.4 (2016)

So it goes nowadays for the parties. It is a sign of the times. A political party has to prove that it is harmed if forced to give nonmembers a full share of the authority to determine its nominees.

It is difficult to follow Linda Greenhouse’s reasoning that the Court has been “broken” because it has been made into an electoral “prize.” Presidential candidates campaign on promises to support the nomination and confirmation of Justices who will move the Court’s jurisprudence in a desired direction. Why should they not? The Court does not decide only abstruse legal issues of interest primarily to learned commentators. If electoral competition necessarily features arguments about--to name a few-- reproductive rights, or voting rights, or the role of money in politics, then it will require candidates to take a stand on the Court. And in some elections, the issue will be right in the thick of the fight.

Donald Trump made as much as he could of the critical importance to Republicans of a Court molded in the image of the late Justice Scalia. Secretary Clinton told the Democratic Convention that: “We need to appoint Supreme Court justices who will get money out of politics and expand voting rights, not restrict them. And we’ll pass a constitutional amendment to overturn Citizens United.” No one doubted that the election would be consequential for the Court. Voters were entitled to know how much of a priority each party attached to the issue and what the candidates would look for in their nominees. The parties and their candidates obliged--as they should have.

None of this excuses the Republican refusal to provide a hearing for and allow a vote on the Garland nomination. But it is mistake to confuse this escalation in the struggle over the Court with the larger point about the central importance in national political conflicts of the Court’s composition. The Senate has an obligation to attend to the procedures and norms consistent with institutional interests and its governing responsibility in the long run. One aspect of this obligation is managing and translating political pressures, not giving entirely into them, in order to preserve the capacity of the body to function as a creditable legislature. If Senator McConnell were to announce that the Senate majority will closely coordinate legislative priorities with the RNC and that the RNC Chair will attend, to this end, the weekly Senate Republican Caucus lunches, there would be an outcry.

The Garland maneuver is an abuse close to this in kind. The Republican Senate majority decided to shape a process---in effect, to invent one--to enable the party’s Presidential candidate to campaign on a pledge to nominate the appropriate successor to Scalia, and to turn the nomination into electoral prize. The Senate subordinated its “advice and consent” function to Republican electoral objectives. Never before had the Senate taken the position that a duly elected President in an election year had no call on the Senate to advise and consent on a Court nomination. As Robin Bradley Kar and Jason Mazzone have shown, the Senate has “transferred” to the next administration the power to nominate to fill a vacancy only when the president had assumed office on the death of a predecessor, or a nomination was made by one president after another had been elected but not yet taken the oath.

Here is a striking sentence in the Washington Post editorial calling for Senate Democrats to refrain from filibustering the Gorsuch nomination:

We are likely to disagree with Mr. Gorsuch on a variety of major legal questions. This is different from saying he is unfit to serve. He deserves the deference due any presidential nominee.

The thought here is that “elections have consequences,” and presidents winning an election have a claim on some measure of deference to their nominees--all of them, including presidential nominees.

The problem is this: Judge Gorsuch is not just “any presidential nominee.” He is a nominee for the United State Supreme Court who could serve for four decades, or more, in this position of extraordinary power. It is possible to have the utmost regard for Judge Gorsuch or any Court nominee and question why, in the name of "deference," members of one party would readily yield on any such appointment to the president affiliated with the other.

Now with the Gorsuch nomination there is another round of largely fruitless argument about the standards that Senators should use in advising and consenting on Supreme Court nominations – – or whether they should simply refuse to consent at all. It goes like this: each party has an obligation to put up for a vote or even consent to the confirmation of a nominee whose views are “mainstream.” The only exception is an election year, or so now say the Republicans to defend their refusal to take up the Garland nomination. This alleged election-year proviso has turned into volleys of “you did it, too”/ “no I did not,” with the Republicans implausibly insisting that they only refused to consider Judge Garland because they were exquisitely sensitive to an election-year precedent they claim that Joe Biden established.

Other than in an election year, and when the qualifications of the nominee are unchallenged, the disagreement is then mostly redirected into one about what constitutes “mainstream.” Given the choice facing them, Senators are virtually compelled to split on this question. Because the true problem here, discussed only obliquely, is the extraordinary power and ambitions of the Court whose members may, and typically now do, serve for many decades. Elections must have consequences, as the saying goes, but it useful to retain some common sense grip on how far the point has to be taken. Each opposition party will be hard-pressed to accept that, with its generously provided "consent,"  a president can strive to recast the constitutional law of the land for the next generation and beyond. Acceptance may be harder if the opposition is smarting from a “stolen seat,” or if it is concerned that a nominee is too much of an ideologue, or if the Court's balance will be immediately "tilted," but it is enough that the appointment is for a lifetime.

It’s conceivable that there is someone somewhere available for nomination who both parties would believe to be reliably moderate in his or her views--a difference-splitter whose decisions would please progressives one day and conservatives the next. But neither party will most of the time be inclined to take the chance. The moderate today could turn out tomorrow to have preferences that run more consistently in one direction. It cannot be known for that matter whether in a decade or more the nominee’s jurisprudential disposition will shift or undergo major transformation.

To imagine that moderation suffices as a standard is also to ignore the probability that a president has campaigned on a promise to nominate a candidate with dependable jurisprudential or ideological commitments. The very reason that he or she is moved to make such a promise returns the argument to the fundamental issue: voters perceive that the Court has an outsized role in the resolution of major and highly contested issues--that it is activist on issues they care deeply about, whether or not the activism is inspired by originalism or belief in a living constitution. A president, but also political opponents, will balk at urging supporters to have faith in a nominee identified as moderate and just hope it turns out all right. There is no chance of persuading them to take Alexander Hamilton’s stated view of the Court’s “comparative weakness,” or to share in his confidence that impeachment would be available to correct a mistake.