President Trump and a coffle of Republican senators have made it clear that —within weeks—they will nominate and confirm a candidate to fill the vacancy on the US Supreme Court left in the wake of Justice Ginsburg’s death. Predictably the decision—being so close to the November election—is proving an unpopular one with Democrats.
Justice Ginsburg earned her reputation as a champion of women’s rights. A leading progressive throughout her 27 years on the Supreme Court, she enjoyed a close personal friendship with the court’s leading conservative—Justice Antonin Scalia. As Jennifer Senior writes, they were one of Washington’s storied odd couples…they went to the opera together, they spent New Year’s Eve together, they once spent time together atop an elephant. There’s a lesson in their friendship that we would all do well to learn.
The loss to the nation of Ruth Bader Ginsburg is incalculable. What can be counted on, however, is that the balance between conservative and liberal justices will shift once Trump’s nominee takes her place on the high court bench. It will be six conservatives and three liberals.
Without knowing who will be nominated, it is difficult to predict with precision the practical consequence of a sixth conservative justice on the nation’s environmental laws. Generally speaking, the new justice will likely exhibit many of the same originalist and textualist leanings as Justices Gorsuch and Kavanaugh, and the over 200 federal judges that President Trump and the Republican Senate have already nominated and confirmed.
Note in phrasing the new composition of the high court I used and—not to. I did so for two reasons.
First, conservative justices can sometimes fool you. Hugo L. Black was a member of the Ku Klux Klan before taking an activist stance on civil rights as a justice of the Supreme Court. Justice Harry Blackmun was a reliable conservative as a US Appeals Court Judge. Appointed by Richard Nixon, Blackmun wrote the majority opinion in Roe v. Wade that legalized abortion.
Another reliably conservative jurist, Justice Anthony Kennedy, wrote the majority opinion in Obergefell v. Hodges legalized gay marriage. Kennedy also voted with the majority in Massachusetts v. EPA, confirming EPA’s power to regulate greenhouse gases.
Conservatives vilified Chief Justice Roberts as having sold out “the cause” when he became the swing vote in June Medical Services v. Russo that tossed out a Louisiana statute requiring abortion clinic doctors to have admitting privileges at a local hospital. Justice Gorsuch—another reliable textualist—wrote the majority opinion in Bostock v. Clayton County Georgia. The ruling in the case was that sexual orientation and gender identity are included in the definition of “sex” in Title VII of the federal non-discrimination laws.
The second reason for using “and” rather than “to” is more a gesture. I would like to believe that the US hasn’t become so divided a nation as to turn governance into a zero-sum competition. Here, however, I fear I’m tilting at windmills.
Notwithstanding all the rationalizations being given by Senate Majority Leader McConnell and Senators from Graham to Grassley to justify their actions, the fact is they are doing to others as they would not like to have done unto them.
Just because something can be done doesn’t mean it should be done.
I am not saying that the Democrats are without sin—on the contrary. Going back to 2013, Harry Reid (D-NV) should never have invoked the nuclear option that lowered the number of votes needed to shut down a filibuster in the case of judicial nominations and executive appointments from 60 to a simple majority.
Majority Leader Reid would have done well to think twice about the consequences of his going nuclear. Shouldn’t the same now be said for the current Senate majority leader and the Republicans?
Didn’t Senator Graham (R-SC), who now chairs the judiciary committee, pinky-swear a few short years ago that he would never hold a confirmation hearing under similar circumstances:
I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said: Let’s let the next president, whoever it might be, make that nomination. (emphasis added)
The impact on the election of the decision to move ahead with a nomination is unclear. Most voters had already made up their minds before Justice Ginsburg’s passing. Its most likely impact will be on the decision of whether to vote at all.
What is clearer is that the Democrats will consider the Republican rush to confirm a provocation to expand the number of justices on the Supreme Court—should they take control of the White House and Senate. There are good reasons for considering high court reforms. Spite is not one of them.
The question the nation needs to ask itself is: where does hyper-partisanship end? If today the Republicans are right to confirm a new justice so close to an election—after promising not to—will the Democrats be right tomorrow to increase the number of justices when they next take the Senate and the White House? And, what about the day after that and the day after that…?
The federal government has been in gridlock for most of the past two decades. The cycle in terms of climate policy has been what one president does, the next one undoes. Climate change is far from the only issue in political gridlock.
Federal courts were more or less the last bastion of government untainted by partisan politics. Now they are about to fall prey to rank politics and from the highest level.
Don’t be fooled; democracy is delicate. It depends—greatly—on a sense of fair play. When all hope of fairness is gone, so too is faith in government.
When did elections change from the peaceful transfer of power to just the next battle in an ongoing culture war? At some point, the war has to stop or the American experiment in democracy will. To paraphrase Abraham Lincoln–
A nation divided against itself cannot function nor long endure.
America is a nation of diverse interests that is strongest when it is in balance. When systems are out of kilter, it opens the door to destructive forces able to pick apart and weaken the ties that bind a community’s diverse elements.
Political balance equates with ecological balance. It refers to a state of dynamic equilibrium within a community of organisms in which genetic, species, and ecosystem diversity remain relatively stable, subject to gradual changes through natural succession. Gradual succession is a cornerstone of American jurisprudence. It is contained within the principle of stare decisis—respect for what came before.
Balance is not an average. It cannot be achieved by spending equal time at the extremes.
The one requirement that should be demanded of all judges and justices—conservative or liberal—is adherence to stare decisis. Continuity is critical.
Leading Senate Republicans—most notably McConnell and Graham—indicated by their words and deeds that vacancies on the Supreme Court in an election year should be filled by the next elected occupant of the Oval Office. What was taken as precedent is now seen as just another political rationalization.
The nation has nearly ceased to function as it was envisioned by the authors of the Constitution. The flaw is not in the system’s design but increasingly in the character of those chosen to lead it.
Lead image: By Gustave Dore – Miguel de Cervantes’ Don Quijote. Illustrations by Gustave Dore., Public Domain, https://commons.wikimedia.org/w/index.php?curid=47159175