San Antonio Express-News

McConnell’s unwise move

- MICHAEL GERSON michaelger­son@washpost. com

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.

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