Introduction
The passing of Ruth Bader Ginsburg (RBG) has launched a rocket propelled grenade (RPG) into an genuinely tumultuous and vexed presidential campaign. And that campaign was already RTG (Really Tumultuous Garbage).
The president, of course, is going to nominate someone to fill Ginsburg’s seat, and Cocaine Mitch has already said that there will be a vote on the Senate floor for that nominee.
The only thing that could make this election year any zestier would be if RBG’s seat was not filled for some reason and the election came down to the wire in some swing state that naturally resulted in legal challenges, and for those legal challenges to wind their way up to a court that had only 8 members and could easily split 4/4. So whatever we do, let’s not do that.
So let us talk about filling that seat, shall we?
Is the Merrick Garland Problem an Actual Problem?
So far from being an example of high hypocrisy, the Merrick Garland problem is not really a problem at all. Recall that Obama nominated Merrick Garland for the Supreme Court, and Mitch McConnell refused to bring it to a vote in the Senate because a presidential election was in progress. Let the American people decide, said he. Well, the argument goes, there is an election in progress now. Why are you willing to bring it to a vote now? What’s with that, Mr. Let-the-American-people decide?
And the answer is simple. McConnell refused to bring it to a vote because there was an election in process AND because the two entities involved in the confirmation process, the White House and the Senate, were controlled by opposing political parties.
I have no doubt that if Hillary had won the election, McConnell would have then brought Garland forward for a vote. And, had he done so, and if the Senate was still controlled by Republicans, they would have had every right to refuse to confirm the nomination. It is worth remembering that the Senate has every constitutional right to refuse to confirm a president’s nominee. The Senate doesn’t owe anybody a confirmation. When the Senate is controlled by the opposing political party, it shouldn’t be surprising when such a showdown happens. When the Democrats have the Senate and the president is a Republican, that’s the name of the game, and vice versa. That is what the battle is all about. So when Mitch refused bring Garland forward, he was simply doing it the clean way and forgoing all the bogus rape allegations.
In this case, with the Ginsburg seat, the Republicans have the White House and the Republicans also have the Senate. As Ted Cruz has pointed out, we are in a situation that has occurred 29 times in the past, meaning a nomination for the Supreme Court being put forward in the same year as a presidential election. In 19 of those cases, the Senate and the White House were held by the same party, and the nominations were confirmed for all but 2 of them. In the remaining 10 instances, the Senate and the White House were in the hands of opposing political parties. In those 10 instances, only 2 nominations were confirmed. Merrick Garland was one of the eight who was not confirmed. That was not a high miscarriage of justice, but something closer to everybody’s standard operating procedure.
With Garland, the Democrats treated it as a gross violation of the rules because their definition of rule violations is anything that crosses their purposes.
So there is actually straight line consistency here. McConnell displeased the Democrats in the Garland case, and he is going to displease them again with regard to whatever child rapist and drug smuggler the president might choose to nominate this time.
Dirty Politics
What McConnell did to the Democrats was politics. What the Left does to any nominees who might threaten their sacrament of abortion is character assassination. Sometimes it works for them, and sometimes it doesn’t, but it is a play they always run if they can. Think Robert Bork. Think Clarence Thomas. Think Brett Kavanaugh. Think of the next nominee who is going to be treated like the second in command of the Tijuana Drug Cartel.
The thing that was so surprising about Mitch’s stand in the Garland case was that he withstood an enormous amount of pressure, not caring what it looked like. But Republicans ALWAYS care what it looks like. That is what Republicans do. They care what it looks like. Democrats never care what it looks like. The Democrats don’t have to care what it looks like because they have an ever-compliant media that is willing to turn their dirtiest deeds into a concern for climate change.
I know that I am generalizing here, but the reason Republicans care what it looks like is that they have dual loyalties that are still operative, and they are still operative because Republicans are good at kidding themselves. They have a loyalty to their party and their principles, on the one hand, and they also have a loyalty to an almost forgotten tradition, that of a two-party system where the other party was thought of as “the loyal opposition.” They still have a loyalty to the idea of getting along with the opposition. This can work when the politics are not inflamed and toxic, but in a time like ours it is simply a culpable and blameworthy anachronism. So the Republicans have a moral responsibility to do what it takes, within the framework of the rule of law, to fill Ginsburg’s seat before the election.
The Myth of Judicial Neutrality
John Roberts once revealed his deep and abiding faith in one of the great myths of our time, a myth that floats like a swampy green miasma above our courts and law schools. Trump had popped off one time about some “Obama judge,” and Roberts responded at the time to the outrage with a carefully parsed non sequitur.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges, What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.. That independent judiciary is something we should all be thankful for.”
John Roberts, in a carefully parsed statement
What I would like to do here, for your edification and possible amusement, is parse this carefully parsed statement myself, and hold up some of the pieces so that you can see them a bit more clearly.
First, is there anybody on the planet who actually thinks this? If there is no such thing as a Trump judge, then why does everyone have a case of the jim jams over the nomination process that is beginning right now? We have no Trump judges and we have no Biden judges! There is no difference! All we have, as far as the eye can see, is “dedicated judges” doing their “level best.”
“Well, that’s enough for me, Melvin. I guess we can rest easy now.”
If by Obama judge, or Trump judge, or whatever, we mean that wires are run between the nominating president and the judge occupying the judicial seat, through which wires signals are sent indicating which way the judge is supposed to vote, Roberts was quite right. We do have an independent judiciary. Judges are not political appointments, and they do not serve at the pleasure of the president who nominated them. Once appointed, they are ensconced in the woodwork.
This is why so many justices can “grow in office,” meaning that they can start to betray the principles that got them the nomination in the first place. This is a kind of independence that John Roberts should know something about. He has been able to drift as far left as he has precisely because judges really are independent that sense.
But judges are not independent of their own judicial philosophy, and presidents with their various political commitments try to pick nominees who are in line with their own philosophy. This is why Supreme Court confirmation battles matter; they are battles over the future of our legal tradition. They are battles over which direction we will go. If Biden were to fill Ginsburg’s seat, the lives of our grandchildren will be very different.
Roe and the Republicans
For years, we have been told that questions about general judicial philosophy are legit, but direct questions about Roe or the Next Roe should be off the table. We must not have a “litmus test.” This was done on the basis of a shared buy-in to the myth of judicial neutrality. And this is why Republicans have gotten rolled so frequently during confirmation hearings.
But this is not the result of the Republicans not meaning what they say. It is the result of the structure of the Senate, and the fact that the Senate is almost evenly divided. When it comes down to a controversial vote, this structure gives all the power of a swing vote to the Collinses and Murkowskis of the world. So sticky questions for the nominee are asked and answered in code, which gives the liberal Republicans room to vote for someone who might overturn Roe, it gives the nominee room to go native after he is appointed, and so forth.
Judges really are independent, but don’t you find it curious that no left-wing judge has used that independence to move steadily to the right, becoming at the last a reliable conservative vote? Nobody does that. But about half the Republican appointments to the High Court drift left over time, leaving the sad wisps of a cautionary tale behind them.
But the important thing to remember is that about half of them do not drift.
And that matters.