Law Can Make Things Better
Law should determine the timing of a Supreme Court nomination, not one man’s whimsy.
Before the nation had a chance to absorb the devastating news of the death of Supreme Court Justice Ruth Bader Ginsberg, the battle over who should nominate her replacement began. In one moment — crushing grief. In the next — staggering hypocrisy.
The pundits and news media have been quick to note the hypocrisy of individual Republican Senators who denied an election year nomination to Barack Obama in 2016 but stand ready to hand a nomination to Donald Trump now.
But the question nobody seems to be asking is why such a consequential act as the timing of a Supreme Court nomination should be determined by one man’s whimsy rather than laws the public agrees on?
Why, in a democracy, should Mitch McConnell be allowed to deny a Supreme Court nomination 9 months prior to the 2016 election with the rationale that it’s too close to the election, and then push a nominee through when voting has already begun in 2020? Why does such enormous power rest in the hands of one man, or even in the hand of the few Senators who get pressured to make a deciding vote on whether to consider a nomination?
The Trump Administration and Republican leadership response seems to be, “Because we can.”
This kind of two-facedness and naked power grab are why many Americans believe government is profoundly corrupt. Topos research consistently finds that Americans — across party lines — believe those in power use the instruments of government to get what they want, no matter the cost or consequence to the people. This is why public trust in government stands at just 20%. (Pew, July/Aug 2020)
While political insiders may be aghast at the flagrant hypocrisy, it’s not so clear that voters will see hypocrisy as relevant to their vote. Topos research suggests that many voters are likely to conclude that all politicians are hypocrites; they are all corrupt.
What is more relevant is the idea that a democracy is supposed to be ruled by laws we-the-people agree on, not the whim of individuals. We should not have to be talking about a battle of wills, political muscle, or gamesmanship on the floor of the US Senate. We-the-people deserve steady, predictable standards that we all agree on and that all have to follow, no matter the political party in power.
The nation relies on laws, not an individual’s sense of honor, to make things better. Ruth Bader Ginsberg herself reflected on how it’s up to the law to make things better:
“Cushman, who assigned her to research McCarthy’s assault on civil liberties, ‘wanted me to understand two things,’ Ruth recalls. ‘One is that we were betraying our most fundamental values, and, two, that legal skills could help make things better, could help to challenge what was going on.’”
― Ruth Bader Ginsburg, My Own Words
It is both common sense and democratic, that clear, agreed-upon standards should apply to all cases, no matter the party in power. Yet, we-the-people have had no chance to weigh in on setting rules regarding the timing of a Supreme Court nomination. In fact, the majority party in the Senate has near total power to determine whether or not a nominee will get a hearing and a vote. Consequential acts such as a lifetime appointment of a Supreme Court justice should not be subject to such clearly partisan games. We-the-people have the right to expect better.
The question we should be asking is what rules or laws would best serve the public interest? Does it serve the public interest to hold a seat on the Supreme Court vacant for a year (as in 2016)? Does it serve the public interest to ram through a nomination without the input of the people, even as people are already in the process of voting for President (as we are seeing now)? We aren’t policy experts, but there should certainly be a common sense standard that we-the-people have a say in, so we can make sure it serves the common good, not partisan power.
Now is the time to demand more of our institutions of government. We should demand clear, consistent pro-public laws that are not subject to tampering by one individual or the party in power.
We should demand that the Senate cannot arbitrarily change rules in the middle of the game and with the say of only one team. It’s our government and it needs to act in our interest, not on behalf of one party’s desire for power.
Pay close attention in this election season to the leaders who support pro-public laws and institutions, and those who seek to tear down. Donald Trump, Mitch McConnell and Senate Republicans are clearly showing they stand for using their power to maintain power — no matter the cost to public trust. Now is the time for Democrats to show they stand for pro-public laws and institutions by putting forward reforms that give average Americans more of a say, not less.
