We’re witnessing a profound tragedy
On June 14, 1993, President Bill Clinton nominated Judge Ruth Bader Ginsburg to the Supreme Court. On Aug. 3, she was overwhelmingly approved by the Senate, with only three hardcore Republican conservatives opposing her.
Twenty-seven years later, the battle to replace Justice Ginsburg, who died on Sept. 18 at age 87, has turned into a Holy War. In an act of rank and hypocrisy, Republicans are determined to approve her successor before the year’s end — even though many of them piously proclaimed just four years ago the Senate should never, ever ratify a Supreme Court justice on the eve of a presidential election.
The Democrats, fuming and flaring with frustration, know President Trump will almost certainly succeed, and are openly threatening drastic retaliation should they capture the Senate and the White House in November. At the top of their list is ending the filibuster, so they can then consider a range of options to enhance their power, from adding justices to the court to adding states to the union.
We’re witnessing a profound tragedy: the strangulation of representative democracy; the virtual collapse of the U.S. Congress as a forum for decency, deliberation and decision-making.
The essence of democracy isn’t majority rule, but a healthy respect for minority rights. That respect must be rooted in a shared understanding all sides will play fair, observe the guardrails and accept the outcome.
That understanding has, for decades, been pummeled and pulverized into tiny fragments. And while there are many reasons for democracy’s dysfunction, and many ways that dysfunction is displayed, the endless warfare over federal judges might be the worst example of how badly the system has been shattered.
Traditionally, presidents and lawmakers didn’t impose litmus tests on judges. Chief Justice Earl Warren, who wrote the Brown decision of 1954 integrating public schools, and Justice Harry Blackmun, who authored the Roe ruling of 1973 legalizing abortion, were both nominated by Republicans — and both approved by the Senate without dissent.
After his election in 1980, Ronald Reagan changed the rules, deliberately stocking the federal courts with younger and ideologically reliable candidates. His carefully orchestrated and highly successful campaign was halted briefly in 1987, when the Senate rejected his nomination of Robert Bork to the high court, and that vote was instructive.
Six Republicans opposed Bork, including Lowell Weicker of Connecticut and John Chafee of Rhode Island: exactly the sort of northeastern moderates who are no longer around to restrain Trump. Shreds of civility remained — after all, Ginsburg was easily confirmed in 1993 — but by 2005, hostilities had hardened. Republican leader Bill Frist threatened to invoke the so-called “nuclear option:” eliminating the filibuster on federal judges to speed approval of President Bush’s nominees.
Catastrophe was temporarily averted by the “Gang of 14,” seven senators from each party who brokered a deal to stave off the rules change. The group included moderate Republicans Olympia Snowe of Maine and Mike Dewine of Ohio, and Southern Democrats Mary Landrieu of Louisiana and Mark Pryor of Arkansas, along with lawmakers loyal to the institution, such as Republican John Mccain of Arizona and Democrat Dan Inouye of Hawaii.
All three of those groups — moderate Republicans, conservative Democrats and institutional loyalists — are close to extinction in today’s Senate. The centrists, the bridge builders, are gone, leaving the partisan warriors in command. In 2013, the Democrats did invoke the “nuclear option,” eliminating the filibuster on lower-court judges and pushing through a raft of President Obama’s nominees.
They were told at the time they were courting disaster, but they refused to listen.
The Republicans completed the demolition that Democrats had started, blocking Obama’s nomination of Merrick Garland to replace Justice Scalia in 2016, and then after Trump’s victory, eliminating the filibuster on Supreme Court nominees. That enabled them to brush past Democratic objections and push through two of Trump’s choices: Neal Gorsuch and Brett Kavanaugh. Now they are poised to ratify a third.
The Senate has indeed been damaged by leaders in both parties who have trashed tradition in the name of short-term gain by silencing the voices of the minority. And it’s only going to get worse.