Sometimes a perfect political metaphor just lands in your lap. I was out riding my bike the other day in a residential neighborhood here in central Connecticut, on an east-west road with which other, smaller north-south roads intersected. As I approached an intersection—I didn’t have a stop sign—a silver pickup truck pulled up to the stop sign on the street from the north. With barely a pause, he breezed across, cutting me off. “Hey!” I shouted, and waggled an index finger at him.
He braked to a hard stop. A white guy, stocky, maybe fifty. “You got a problem?” he shouted.
“Yeah,” I said. “You almost hit me.”
“I got there before you,” he said.
“But you had a stop sign, and I didn’t.” I pointed back to the intersection. “I had the right of way.”
“Yeah?” He smirked. “Well, fuck you and your right of way!” And away he roared.
I noticed the Trump/Pence bumper sticker on his truck; and while of course aggressive drivers come in all ideological stripes, I can’t help thinking about this exchange when I regard the political brouhaha over nominating a Supreme Court justice to replace Ruth Bader Ginsburg. The encounter at the intersection makes me think about the relation of power to principle.
Like many a battered idealist, I’m often irked by the gap between what individuals, institutions, and governments do in pursuing their interests, and what they say they’re doing. Naked power moves always seem to gather a fig leaf of principle. The Supreme Court mess is a classic example. When the GOP stole the Merrick Garland seat, they tried to hide the larceny behind a principle: namely, that no new justice should be chosen in an election year. Everyone knew that the real reason was that they wanted the seat, and they had the power to take it.
What is it that requires the fig leaf in these situations? Partly it’s human nature, people not wanting to look selfish or petty. But politically there’s a lot more to it than that. People don’t only want to feel good about themselves; they want to prevail, they want to win. In politics, that means taking your case into the public realm and presenting it to people. And that in turn requires tools and weapons. The appearance of principle is a useful tool.
Back in 2016, when Antonin Scalia died and then-President Barack Obama nominated Merrick Garland, the argument piously reiterated by all those ostensibly Constitution-worshiping Republicans was that no Supreme Court justice should be nominated in an election year; rather, the will of the people should decide. “The American people should have a voice in the selection of their next Supreme Court justice,” said Sen. Mitch McConnell. “Therefore, this vacancy should not be filled until we have a new president.”
In truth, nothing in the Constitution requires, or even suggests, that we should deviate from the normal advice-and-consent procedure for vetting Supreme Court nominees simply because it’s an election year. In the century before Garland, we’d had thirteen nominees in election years, and eleven were confirmed. The truth was that the GOP just didn’t want Obama to get a nominee through—not even a moderate, middle-of-the road judge like Garland, whom Obama had chosen precisely because he thought some Republicans might be able to vote for him. Fat chance. The setup was purely partisan, and they rammed it home.
Let’s back up and acknowledge that destroying the federal judicial nomination process was a bipartisan effort over many years; both sides contributed to turning the consultative process into partisan war. In the blame game, Republicans go back to the 1987 rejection of Robert Bork, portraying that event as a “left-wing plot” to keep conservatives off the court. To Dems, the Bork rejection was an appropriate reaction to the nomination of a flaming ideologue; they view the original sin as the GOP’s obstructionism against Obama’s judicial nominees. Frustrated by this obstruction in the Senate, Democratic majority leader Harry Reid decided to invoke the so-called “nuclear option,” eliminating the filibuster option for all judicial nominations except for the Supreme Court. Threatening to eliminate the filibuster was a game of chicken that both parties had played over the years, depending on who was in power; but Reid and the Dems went ahead and did it. Sure enough, with this tool removed from the GOP toolkit, Obama filled one hundred seats in the next fourteen months.
Republicans fumed. “You’ll regret this,” Mitch McConnell warned, “and a lot sooner than you think.” He was right. The Republicans retook the Senate in the 2014 midterm elections, and McConnell, now the new majority leader, led a near-total blockade of Obama’s judicial appointments. This Republican effort at payback culminated in Garland. No sooner did news of Scalia’s death filter out than the party’s leaders began insisting that President Obama shouldn’t even attempt to nominate a successor, arguing that no Supreme Court justice should be nominated in an election year.
The Republican strategy was a desperate one: stall, then hope for a Hail Mary in the election. To everyone’s astonishment, the unthinkable happened. Trump was elected, and the strategy worked. But at what cost? The procedural warfare raged on. Democrats, who had been so complacent about a Hillary Clinton victory that they had relaxed a bit in the face of Republican intransigence on Garland, now viewed the seat as stolen property, and responded by filibustering Trump’s first nominee, Gorsuch—whereupon Senate Republicans, once so bitter about Harry Reid “going nuclear,” pushed the button and blew away the remaining filibuster for Supreme Court nominees. So now the process is fully weaponized, and the minority party has no tools left in the toolkit. And once again we have an open seat.
Let’s return to those Republican senators of 2016. It makes your skin crawl to revisit their pious arguments and compare that to what they’re saying now. Back then, Lindsey Graham specifically announced his stance as a point of principle, one he should be held to in the future. “I want you to use my words against me,” he said at the time. “If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said: Let’s let the next president, whoever it might be, make that nomination. And you could use my words against me and you’d be absolutely right.”
Well, the future is now...and Lindsey Graham? He is gung-ho for Trump’s right to nominate a replacement for RBG, mere weeks before the election—and for the Senate to confirm. He’s not alone. Only two GOP senators have expressed doubts about nominating someone before the election. The great majority are embracing the sleazy position put forth by McConnell—and reiterated, sadly, by Mitt Romney—that what they really meant back in 2016 was that the seat should be left open when different parties control the White House and the Senate, but that when the same party controls both, the process should proceed post-haste.
This is so shameless, so blatantly hypocritical and phony, that one hardly knows what to say. Romney is no Trump lover, but he is a conservative (“severely conservative,” you may recall!), and he wants that Supreme Court seat. He doesn’t want to sound unprincipled, though, so he hides behind the bogus argument mentioned above.
The problem with cloaking naked power plays behind a sham show of principle is not only that you infuriate the other side, but that you damage and diminish the capacity for principle at large. Voter cynicism just grows and grows. And it isn’t just our capacity for principle that’s being damaged. What about our institutions? The Supreme Court itself has crossed new thresholds of partisanship. It can be said to have begun with Bush v. Gore, whose flimsy arguments showed a five-justice Republican majority determined to elect their man, and has continued right up through the Kavanaugh confirmation. That hearing was notable less for the hot partisan skirmishes among the senators (we’re used to that by now) than for the unprecedentedly frank partisanship introduced by Kavanaugh himself in his testimony—angrily attacking “left-wing groups” while dismissing opposition to his nomination as “revenge on behalf of the Clintons” and “a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump.” It was as if Rush Limbaugh were the nominee. “Never before,” said Sen. Dianne Feinstein, “has a nominee displayed such open partisanship and flagrant hostility to this Committee.”
When confronted this week with his pious “mark my words” promise of four years ago, Graham did a rare thing. He didn’t reach for the fig leaf. Instead of mouthing some newly discovered, sham pseudo-principle, he said the following in a letter to the Democrats on the House Judiciary Committee: “It is important that we proceed expeditiously to process any nomination made by President Trump to fill this vacancy. I am certain if the shoe were on the other foot, you would do the same.”
Well, at least he’s honest. We’re taking this seat, and you would do exactly the same thing! Yet somehow this honesty doesn’t make me feel a lot better. For liberal idealists, the question is: What becomes of principle when you are at war? Is there any point in maintaining a principle when your nemesis won’t and doesn’t? What is the value in being right? The guy who blew through the stop sign was the Lindsey Graham of drivers. “Fuck your right of way,” he said. He had a truck, I had a bike, he could do what he wanted—and while I might scream bloody murder, I couldn’t actually do anything about it.
Democrats have to fight back. But how? Even assuming a big Democratic victory in November, plus a Democratic Senate, the options right now are limited. By January, Trump may well have gone three-for-three in Supreme Court nominees, remaking the court with a solid conservative majority that could last for decades.
What to do? There has been a lot of noise on the left about enlarging the size of the Supreme Court, adding two to four new seats that would presumably reinstate a liberal majority. Such a “court-packing” move was contemplated by FDR, who faced a similarly conservative court majority, but that was resisted by politicians from both parties. It’s a different day now, and I doubt you’d find many Democrats opposed. As a procedure-minded kind of liberal, I wince at the thought of deforming the court in this manner. But the court has already been deformed by brutal power moves on the part of the Republicans. The theft of the Garland seat was a quantum leap to a new level of cynicism and in-your-face power.
Packing the court will be seen as highly inflammatory, and raises the question “What will ever end this partisan warfare?” But what other tools do Democrats have? For the moment, bike-riding Democrats have nothing to do but watch Trump, McConnell, Graham et al. blow through the stop sign and barrel through the intersection in their big truck. Yeah, we have the right of way. But you know what they think about that.
