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Resumed, the SCOTUS Wars Have
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Resumed, the SCOTUS Wars Have

And there is but one rule of engagement—escalate. 

I still remember the speech. I was 18 years old and was already suffering from the symptoms of constitutional nerdery. I’d discovered National Review magazine and read about originalism. I admired Ronald Reagan, and when he nominated Robert Bork to the United States Supreme Court I could hardly believe the nation’s good fortune. Another conservative intellectual giant would sit on the court? Outstanding.

But then the Democrats declared war. Bork, in their telling, wasn’t just wrong, there was something wrong with him. He was the instrument of hate, a terrible man. Ted Kennedy took to the floor of the Senate and delivered these words:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.

I was stunned. I felt a sense of deep injustice. It’s one thing to oppose a nominee, it’s another thing entirely to defame him, to paint him as an enemy of the people. 

But Kennedy won, Bork lost, and I was introduced to the SCOTUS wars, the battle for control of what has become the second-most powerful branch of government. And in the SCOTUS wars, there is but one rule of engagement—escalate. 

With the death of Ruth Bader Ginsburg in the heat of a presidential campaign, the escalation has begun again. Round one came instantly, when multiple Republican senators immediately rejected and repudiated prior definitive statements that it was not appropriate to confirm Supreme Court justices in an election year. 

One of the most eloquent back in 2016 was Rob Portman of Ohio, who said this

I believe the best thing for the country is to trust the American people to weigh in on who should make a lifetime appointment that could reshape the Supreme Court for generations. This wouldn’t be unusual. It is common practice for the Senate to stop acting on lifetime appointments during the last year of a presidential term, and it’s been nearly 80 years since any president was permitted to immediately fill a vacancy that arose in a presidential election year.

Lindsey Graham was more direct and equally clear: “If an opening comes in the last year of President Trump’s term,” he said, “and the primary process has started, we’ll wait to the next election.”

I can go on, but here’s one more—Sen. Marco Rubio: “I don’t think we should be moving on a nominee in the last year of this president’s term—I would say that if it was a Republican president.”

Those statements—to borrow a phrase from the Nixon White House—are “no longer operative.” But neither of course are Democratic declarations from the same time period. My favorite came from Democratic Sen. Christopher Murphy: “The president fulfilled his constitutional obligation today, now the Senate must fulfill ours … If Senate Republicans refuse to consider the president’s nominee, they will be willingly violating the spirit of that sworn oath.”

Senators violate their oath of office by rejecting a presidential nominee? As the saying goes, “Big, if true.” 

I walked through some of these quotes in a Time essay yesterday, and we don’t need to belabor them now, but one thing is quite clear—the decision to turn on a dime and reject clearly stated political principles when a presidential election is so close that voting is actually underway represents an escalation of the SCOTUS wars. 

Nothing quite like it has happened in 80 years, and even then Franklin D. Roosevelt’s 1940 nomination and Democratic confirmation of Justice Frank Murphy was completed almost 10 months before election day. 

In fact, we’ve added two states to the union (and four seats to the Senate) since the last time a president pushed his nominee through during an election year. 

And what’s the Republican justification for this departure both from their word and from historical norms? For some, like Lindsey Graham, it’s prior Democratic political atrocities. In a letter to his Judiciary Committee colleagues, Graham indicated that one reason for his reversal was Democratic treatment of Brett Kavanaugh:

[A]fter the treatment of Justice Kavanaugh I now have a different view of the judicial confirmation process. Compare the treatment of Robert Bork, Clarence Thomas, Samuel Alito, and Brett Kavanaugh to that of Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, and it’s clear there are one set of rules for a Republican president and one set of rules for a Democratic president. 

Lindsey Graham has a point. After all, the Democrats confronted Kavanaugh with obviously spurious gang rape allegations during his Senate hearing. It was a low, disgraceful moment that still mars the reputation of the alleged “world’s greatest deliberative body.” 

And the mistreatment doesn’t end with SCOTUS nominees. The likely frontrunner for Justice Ginsburg’s seat, Judge Amy Coney Barrett, faced her own strange moment in her confirmation hearing for a seat on the 7th Circuit Court of Appeals. California Sen. Dianne Feinstein said to Barrett, “When you read your speeches the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for, for years in this country.”

Speaking of the oath of office, Article VI, Clause Three of the Constitution states, “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

But that’s the old escalation. Today, elements of the media started an entirely new escalation against Judge Barrett. It started with a piece from Newsweek, declaring that groups like “People of Praise”—a Catholic religious group Barrett belonged to—were the inspiration for The Handmaid’s Tale.,Margaret Atwood’s dystopian book about female subjugation in a mythical theocratic republic. 

Again, what’s the phrase? Big, if true.

But when you read down to the bottom, you see a rather interesting note: 

This article’s headline originally stated that People of Praise inspired ‘The Handmaid’s Tale.’ The book’s author, Margaret Atwood, has never specifically mentioned the group as being the inspiration for her work. A New Yorker profile of the author from 2017 mentions a newspaper clipping as part of her research for the book of a different charismatic Catholic group, People of Hope. Newsweek regrets the error.

I’m sorry, that’s quite the correction. It may even merit retracting the piece. Instead, the theme got picked up by Reuters and Yahoo. Yahoo’s story ends like this:

We know a lot of people have jokingly said that if Trump gets elected—or in this case reelected—that the alternate reality of The Handmaid’s Tale will become real. While we are still optimistic that it will remain the fiction of books and television, Barrett’s potential nomination to the Supreme Court is concerning.

But that’s not all, Yahoo also ran a story with the lurid headline declaring “This Is Amy Coney Barrett, The Potential RBG Replacement Who Hates Your Uterus.” 

Again, we see an escalation. And it won’t be the last. After all, looming in the background are Democratic threats to respond to Republicans confirming Trump’s nominee by packing the court or adding a new state (Puerto Rico) that could alter the balance of power in the Senate. These actions would be drastic, but they rest squarely within the constitutional power of a party that controls the legislative and executive branches.

Both Jonah and I received quite a bit of blowback yesterday when we proposed (me in Time, Jonah in the Los Angeles Times) a compromise—Trump nominates his pick, but the Senate holds its vote until after the election. If Trump wins, they confirm the pick. If Trump loses, they also confirm the pick unless key Democrats (including Joe Biden) pledge not to pack the court. In other words—maintain an 80-year norm of election year nominees and maintain the more than century-long norm of a nine-member court. 

It’s a tough compromise, no question. It asks both the Democrats and Republicans not to do something they have the power to do. It asks the Republicans to risk a SCOTUS seat on an uncertain election outcome. I completely understand the objection, and good people (including Mitt Romney) disagree with me. But one must ask, in the absence of compromise, how do the escalations end? 

Because don’t think for one moment that this round will be the last, that tempers will cool, and norms will be restored. We keep tearing at the fabric of our culture and our nation, and the firm conviction on both sides is that only suckers believe in peace.

One more thing …

Today is book launch day! First thing this morning, I read this review of Divided We Fall in the New York Times. It’s by James Kirchick, and it’s excellent. He gets it:

The 2016 election unleashed a flood of books warning that the duly elected president of the United States would transform the country into a dictatorship. This has proved to be a dubious proposition, and not just because Donald Trump lacks the discipline necessary for such a gargantuanly complex undertaking. The enormous popularity of these jeremiads, even more than their profusion, would appear to contradict their alarmist thesis. It seems odd somehow to speak of impending authoritarianism when its opponents see their books shoot to the top of the best-seller lists.

The more plausible future dystopia is related to the nature of America as a geographically large, culturally heterogeneous and politically decentralized country. Instead of a fascist power grab, we seem more likely to witness an escalating series of disputes between state and federal authorities, and among the states themselves, leading to the possibility of division and secession. 


French’s answer to our deepening divide is federalism, the constitutional principle that prioritizes “tolerance through self-governance and community autonomy.” To illustrate the dangerous consequences of what could happen if his plea goes unheeded, French presents a pair of chillingly believable, near-future secessionist scenarios involving California and Texas — a “Calexit” if the Supreme Court were to strike down the state’s sweeping gun confiscation law and a “Texit” initiated by a similar fracas over abortion. Both seem likelier than a Trumpian repeat of the Reichstag fire predicted by so many commentators.

Four years into this unnerving presidency, America has ably resisted the depredations of a commander in chief who imitates a dictator on Twitter. Whether it can withstand the centrifugal effects of its own divisions will be a much greater and more enduring challenge.

In other words, we have met the enemy of American unity, and it is us. 

You can buy the book here, and whether or not you purchase it, please join my Advisory Opinions co-host Sarah Isgur and me for a very special Dispatch Live, where we’ll discuss my book, the court, and more. 

One last thing …

As a lifelong Kentucky fan and a Lakers fan (after my beloved Grizzlies), this was a nice moment. Anthony Davis called game:

Photograph by Jonathan Newton/Washington Post/Getty Images.

David French is a columnist for the New York Times. He’s a former senior editor of The Dispatch. He’s the author most recently of Divided We Fall: America's Secession Threat and How to Restore Our Nation.