Following Ruth Bader Ginsburg’s death, it is almost comical to hear those who have labored mightily to blow up the system now demanding regular order.
This charade starts with the late justice herself, who violated longstanding traditions during the 2016 election when she called candidate Donald Trump a “faker.” She did so once more on her death bed when she wished away the Constitution’s separation of powers by pressuring the president to renounce his authority to nominate her replacement until after the election. (To those who say one should not criticize the dead, I say she brought it on herself by politicizing her own passing.)
Democrats echoing her stand claim it would be hypocritical for Trump to nominate someone and for Senate leader Mitch McConnell to swiftly hold hearings given the GOP’s refusal to hold hearings for Merrick Garland when President Obama nominated him in 2016 following the unexpected death of Antonin Scalia.
Back then McConnell invoked what is known as the so-called Biden rule – who says history doesn’t have a sense of humor? – which held that a Supreme Court nominee should not be considered during an election year when the Senate is held by one party and the White House by another.
Pedants will note that this is not the situation we face now as the Republicans control both. Fair-minded people, however, will acknowledge that of course it would be wrong for the Republicans to try to jam through their own conservative replacement for the liberal lion, especially when it is quite possible President Trump will lose in November.
But Trump and McConnell have pledged to do just that and Democrats are screaming that this is the height of hypocrisy. Hypocrisy, of course, is a relative term; it only has meaning to the degree such action reflects a departure from acceptable standards.
In Washington, there are precious few norms. And while the Republicans have certainly contributed to this unmooring, it is the Democrats who are chiefly to blame. Their vicious treatment of Robert Bork, Clarence Thomas, Samuel Alito, and Brett Kavanaugh turned Supreme Court confirmation hearings into lawless barroom brawls – note that no Democrat nominee has ever suffered such outrageous slings and arrows.
It was the Democratic Senate under the leadership of Harry Reid – who falsely suggested that Mitt Romney failed to pay his taxes – that ended the filibuster for most executive appointments and judicial nominees in 2013.
More recently, a wide range of leading Democrat senators have signaled their intention to end the filibuster for all legislation if they retake the upper chamber. Assuming they also hold onto the House, this would allow them to pass any legislation – including granting statehood to Washington, D.C., and Puerto Rico, which would effectively give them four more senators – by a simple majority if Biden wins.
Democrats have also said they might seek to pack the Supreme Court by expanding the number of justices, which could be filled by President Biden. It’s not hard to imagine the next Republican president following suit, so that we might end up with a court that has more members than Congress. It sounds ridiculous. But that is where we are. Thus the idea that Trump and McConnell would act responsibly seems like a form of unilateral disarmament. Tout pour la guerre!
In a better world – the one we called America just a few decades ago – our leaders would recognize the dangerous path we are on. They would acknowledge the obvious: That standards and norms are the lifeblood of a healthy democracy.
They would quickly gather and agree, in writing, to a set of principles that protect us once more from the tyranny of temporary majorities. They must know that government of the people, by the people and for people will perish if it becomes an instrument for forcing one side’s will upon the other. They must see that we will never be united through the politics of divisive coercion.
The question is whether they are long past caring.