Republicans and Democrats Need to Make Up Their Minds About the Supreme Court

America lost a giant last week.

The death of U.S. Supreme Court Justice Ruth Bader Ginsburg rocked the American political landscape to the core and became the new centerpiece of the 2020 presidential election: a focal point which will doubtlessly come to shape the climate and course of the next few months as well as the decades to follow.

The body of the Honorable Ginsburg had not even cooled before Republicans and Democrats began to take shots at one another.  Senate Majority Leader Mitch McConnell quickly announced his intention to facilitate the appointment of virtually any candidate, vowing that “President Trump’s nominee will receive a vote on the floor of the United States Senate”.  Meanwhile, Alexandria Ocasio-Cortez, the rising star of the Democratic Party, tacitly warned McConnell not to “play with fire” by attempting to fill the vacant seat before the upcoming election.  Former President Barack Obama adopted a softer, more tactful, and yet no less urgent tone, exhorting Republican Senators to refrain from replacing Ginsburg until after November.  “The process”, he insisted, must be “unimpeachable”.    

Not surprisingly, the postures of McConnell, Ocasio-Cortez, and Obama directly and categorically contradict the stances which both the Republican and Democratic parties held very recently.

It was only four years ago that Justice Antonin Scalia died in his home and ignited a vitriolic political debate which largely defined and characterized the 2016 presidential election.  Scalia was the foil of Ginsburg in every way; his traditional conservatism rivalled her progressive liberalism, and his strict constitutional originalism and textualism represented a stark contrast to her belief in a “living Constitution”.  The two maintained a well-documented friendship in spite of their philosophical differences, and yet this amicable relationship was not enough to stem the roaring tide of bitter duopolist politics.

In response to the sudden passing of Scalia, McConnell preemptively promised to bar any bid on the part of then President Obama to name a successor on the grounds that “the American people should have a voice in the selection of their next Supreme Court Justice” and that, therefore, “th[e] vacancy should not be filled until we have a new president”.  Obama attempted to place Merrick Garland on the bench despite McConnell’s pledge to block the appointment and, after this failed, remarked that Senate Republicans had “invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in”.

In sum: In 2016, Republican leadership refused to entertain a rushed confirmation and Democrats accused them of partisan obstructionism.  In 2020, Republican leadership has completely reversed its position and, over the explicit objections of party Democrats, will press forward to confirm the next Supreme Court Justice in less than two months.

What changed?  Nothing at all.

This is merely the most recent exercise in expedient hypocrisy brought to you by two ostensibly dichotomous (and yet ultimately indistinguishable) sides of a deeply fractured two-party system.  It is the inevitable consequence of the decisions of American voters who have repeatedly indulged a structure of government which merely demands a “lesser evil”.  It is the inescapable result of submission to an institution wherein the foremost credential for executive leadership is “hey, he’s not as bad as the other guy”. 

It is in times like these that I like to draw upon the profound, albeit platitudinous, wisdom of NBC’s The West Wing, the celebrated television series in which creator Aaron Sorkin demonstrated what true bipartisan politics could—and should—look like.  In an episode entitled “The Supremes”, President Josiah Bartlett brilliantly manages to appoint two Supreme Court Justices in a single night.  He accomplishes this feat by doing the unthinkable: he simultaneously nominates a hardline Republican and a radical Democrat in order to appease everyone involved in the arduous process and to preserve the balance and integrity of the Highest Court in the Land.

Today, such admirable idealism is almost comedic, not because it is not a worthy aspiration, but because it is such an unrealistic one.  That sort of cooperation across the aisle is anomalous at best. 

Republicans and Democrats alike must decide how to consistently and fairly evaluate the role of the president, obligation of the legislature, and impact of an impending election on this pivotal procedure.  If you laughed aloud and thought “yeah, right!", you are not alone.  

Obama is right.  The selection of a jurist to serve a lifetime appointment in one of the most prestigious and important offices in the nation ought to be unimpeachable.  Unfortunately, neither Republicans nor Democrats have exhibited the capacity to make it so.