I’ll confess: There was a time when I would have considered the question facing Republicans a no-brainer. Of course they should seize this opportunity to replace the late Ruth Bader Ginsburg with a conservative. Moving the courts—especially the Supreme Court—rightward has been a conservative lodestar for generations. It remains one of the last tenets of pre-Trump conservatism that still largely unites the right.
In fairness, the conservatives who take these matters seriously would say the issue isn’t so much moving the courts “rightward” as it is restoring the courts to their proper role. They—we—believe the primary reason these fights have become so ugly is that the judiciary has taken upon itself legislative functions it does not have. (This is why even pro-choice conservatives, and even pro-choice liberals like Ginsburg, believe Roe v. Wade was deeply flawed.) When Supreme Court justices do the job of politicians, it shouldn’t be a surprise that confirmation battles resemble political campaigns.
One of the benefits of this high-stakes moment is that many conservatives have shelved the old arguments about Senate precedents and hypocrisy and stated the matter clearly.
“In reality, there are only two rules, both set forth in the Constitution,” writes National Review’s Andrew McCarthy. “A president, for as long as he or she is president, has the power to nominate a person to fill a Supreme Court seat; and that nominee can fill the seat only with the advice and consent of the Senate. That’s it. Everything else is posturing. Everything else is politics.”
As is often the case, McCarthy is right.
But this argument is also why I’m going wobbly. One of the reasons we are where we are is that then-Senate Majority Leader Harry Reid took this position when he invoked the “nuclear option” in 2013—i.e., lifted the filibuster for appellate judges. Mitch McConnell, the minority leader at the time, warned that doing so would invite a response in kind. In 2017, now-Majority Leader McConnell was true to his word. He lifted the filibuster on Supreme Court nominees.
In other words, what happens when both parties embrace the doctrine of “do whatever you can get away with”?
Even before Justice Ginsburg’s demise, Democratic support was building not just for packing the Supreme Court by increasing the number of justices (which Ginsburg opposed), but also for Washington, D.C., and Puerto Rican statehood and the abolition of the legislative filibuster. Now, Democrats are all but vowing to go through with expanding the court in response to a rushed replacement for Ginsburg.
What will be the GOP’s argument against such schemes?
What some now dismiss as “politics and posturing” are actually important considerations that honor the conservative distinction between “can” and “should” and fall under such antiquated notions as statesmanship, prudence, legitimacy, consistency and precedent. These concepts put maintaining the long-term health of our institutions above the demands of the moment.
Take Sen. Lindsey Graham, who promised in 2016 that if an opening were to come in the last year of President Trump’s term, a nominee would not be considered until after the election. By going back on that promise in such spectacular fashion, Graham isn’t merely debasing himself, he’s also teaching people that nothing politicians say matters.
Moreover, merely on the level of realpolitik, abandoning all considerations other than what you can get away with amounts to pre-emptive disarmament for the wars to come. The pernicious logic of apocalyptic politics works on the assumption that the long term doesn’t matter. But the long term always becomes now eventually.
This is why the Senate could have used more posturing and politics, not less. Republicans have the ability to fill Ginsburg’s seat before the election or immediately after in a lame-duck session. That’s a huge bargaining chip, and given that the GOP’s Senate majority is so slim, it’s a chip that could have been traded by even a handful of Republican senators.
A few Republicans could have agreed to postpone the process until after the election in exchange for a few Democrats agreeing never to vote for a court-packing scheme, giving voters some buy-in for whatever happens next. If no Democrats agreed, then their issue is really with the system, and Republicans would have been free to vote for Trump’s pick, even in a lame-duck session. I’m using the past tense, because on Tuesday morning, McConnell collected enough GOP votes to proceed with a fast-tracked process that will surely invite tit-for-tat reprisals down the road.
I had high hopes such a deal could work. I was naive. After all, such a bargain required politicians to trust other politicians to keep their word and stand up to the bases of their own parties for the long-term good of the country. I should have realized everyone is too out of practice with that sort of thing.
Photograph by Drew Angerer/Getty Images.
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