How GOP might get to yes on replacing Ruth Ginsburg
Imagine a Republican senator uncertain whether to vote for the Supreme Court nominee that President Trump is poised to put forward.
Here is how he might consider the problem. On the one hand, there is the threat of what keeps being called a “legitimacy crisis” should Ruth Bader Ginsburg, who died Friday, be quickly replaced by a conservative jurist. In replacing Ginsburg, Trump would be altering the balance of the court more decisively than with his previous picks, both of whom took seats from Republican appointees.
And he would be doing so in a country that’s already polarized, maddened, suffused with hysteria. The madness around Supreme Court battles has been building steadily since Robert Bork’s defeated nomination in 1987, and at some point it has to be defused. If someone — which means some Republicans, at the moment, because the power is in their hands — doesn’t find a way to de-escalate, to concede some ground, then the court and even the Constitution could be in the gravest sort of peril.
That’s the situation as understood on the left and much of the center. But our senator is a Republican senator, mindful of his own coalition’s views. He knows there is more than one way for an institution to lose legitimacy and that, for many conservatives, the high court eviscerated its own authority decades ago when it set itself up as the arbiter of America’s major moral controversies, removing from the democratic process not just debates about sex and marriage and school prayer but life and death itself.
Those “many conservatives” include this columnist. Since I became opposed to abortion, sometime in my later teens, I have never regarded the Supreme Court with warmth, admiration or patriotic trust. What my liberal friends felt after Bush v. Gore or after Brett Kavanaugh’s confirmation or in imagining some future ruling by Amy Coney Barrett, I have felt for my entire adult life.
For decades, conservatives elected Republican presidents, Republican presidents appointed Supreme Court justices — and yet about half of those justices turned out to be either outright judicial liberals or “swing” votes who always seemed to swing toward social liberalism.
And further, what would it say to the millions of voters who have supported the Republican Party almost exclusively because of judicial politics for decades for a situation to come along where there is no constitutional bar to appointing Ginsburg’s successor, and then Republican senators simply cede the opportunity, extracting at most a vague no-future-court-packing promise in return?
One answer is that a brave stand in favor of bipartisanship by a few Republican senators might set the stage for a return of wise-man politics, in which various reforms proposed for the Supreme Court — shorter terms, rotating appointments, a larger bench appointed by bipartisan committee — could be pushed through by Republicans and Democrats together, in a Joe Biden presidency or thereafter.
Meanwhile, conservatives would have all of their suspicions about establishment Republicans confirmed yet one more time, and they could add the Supreme Court to the lengthening list of elite institutions in which cultural liberalism’s power seems more consolidated every day.
The likely result would be a right-wing coalition that’s angrier and Trumpier than the GOP that nominated Trump himself four years ago. So our imagined Republican senator’s reward for his highminded vote could easily be a longer-term defeat for moderate conservatism; the judiciary would be handed over to ambitious liberals, and his own party would become more populist, paranoid and hostile to any form of compromise.
All that our senator knows about this vote for certain is that it will give one of the (unfortunately) most powerful offices in America to either the person nominated or some person chosen by the current Democratic nominee.
If the person nominated seems like a better choice to be entrusted with that power, then despite all the atmospherics, there’s a clear case for voting yes.