McConnell’s unwise move
I worked as a Senate staffer when Justice Ruth Bader Ginsburg was confirmed by a 96-3 vote. It was not inevitable that the first successful Supreme Court nomination by a Democratic president since Lyndon B. Johnson chose Thurgood Marshall would be secured in a cakewalk. In this case, though, cakes were duly walked.
Ginsburg’s ideological proclivities were not unknown. (Jesse Helms, RN.C., argued she would support the right to abortion and “is likely to uphold the homosexual agenda.”) But in 1993, such ideological considerations were generally outweighed by an institutional norm.
Republican senators thought presidents, as a rule, deserved deference to their judicial choices. The Senate’s role, as Federalist No. 76 defined it, was to prevent “the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” The confirmation process focused on professional fitness and judicial temperament rather than ideology. By those standards, Ginsburg was a brilliant choice.
As the political world moved toward securing ideological outcomes at any cost, this norm of the Senate minority was abandoned. With the passing of Ginsburg, a norm of the majority may fall as well.
The president and Republican Senate have the constitutional right to fill a Supreme Court vacancy two months before a presidential election or in the lame-duck session that follows. Consistently applied, the norm makes sound institutional sense. But proposing a nominee within sight of an election has seemed unseemly — especially among Republicans who stretched the norm to block Merrick Garland in 2016.
This norm makes good institutional sense. A parting-shot nomination smacks of ruthless politics rather than the reflection of a democratic choice. A Senate confirmation battle threatens to superheat a presidential election already boiling with destructive passions. It would leave the Supreme Court looking more political and less legitimate. And the prospect is leading to promises of retribution by Democrats that would push this country further toward being a nuclear banana republic.
At some point, running an institution to its limit becomes running it into the ground. At some point, ruthlessly exercising the rights of the majority becomes destroying the dignity of the minority. And that can poison the relationship between majority and minority that is necessary for an institution to function. The U.S. Senate is exhibit No. 1.
The danger, however, reaches deeper. Yuval Levin of the American Enterprise Institute warns we may be entering “a moment of decision about the future of our regime.” “Do we consider social peace a high priority,” Levin asks, “or does every side press every technically permissible advantage (because the other side does) until we have nothing left to defend?”
As Senate majority leader, Mitch McConnell, R-Ky., is advancing the idea that a favorable ideological composition of the Supreme Court is the greatest prize in American politics and any partisan means to achieve it is justified. Neither idea — Supreme Court supremacy or unrestricted partisan warfare — is particularly conservative. And the combination is causing a cycle of ruthlessness and humiliation that threatens to disable the Senate and destabilize our politics.
The addition of a responsible conservative to the court is a valid goal. But what McConnell seems poised to do, while constitutionally permissible, is deeply unwise.
Political activists would probably argue all this talk about norms is sentimental rubbish. They might respond the stakes are too high for unilateral selfrestraint, which is really ideological surrender. But some things they disdain — including prudence and honoring the dignity of the legislative minority — are what allow institutions to persist. Such traditions can appear ornamental. In removing it, we find it plays a structural role.
Someone needs to end the escalation that threatens democratic institutions. President Donald Trump — with the complicity of Republicans — has used a scythe of ambitious ignorance to cut down democratic norms. Only Senate Republicans can now display institutional integrity, defy their worst instincts and begin the healing.