As one whose Republican lineage stretches back to Civil War times, who with one exception has a lifetime of voting in Republican primaries (and back when it wasn’t always cool) and who late in life left the Grand Old Party for a host of reasons ideological, ethical and moral, let me assure my perennially naïve, self-deluded Democratic friends of one thing that constantly eludes them: You cannot shame a political party when its only remaining principle is “The ends justify any and all means.”
And stocking the Supreme Court of the United States and as many federal courts beneath it with as many “conservative justices” as possible, whatever their merits, has long been a GOP obsession, if only to overturn Roe v. Wade. Gaining judicial favor from Republican judges and justices presumed to lean the party’s way in future disputes including electoral irregularities sure doesn’t hurt, either.
All that bold, seemingly principled talk by Senate Republicans and their followers in 2016 about how no president should fill a lifetime vacancy as important as a Supreme Court justice during a presidential election year, that such a momentous decision should be reserved to the winner of the presidential contest as determined by the people? Republicans had the Senate numbers on their side to enforce such a dubious principle, blocking Democratic President Obama from gaining a proper confirmation hearing for his nominee — moderate, 64-year-old Judge Merrick Garland — to succeed arch-conservative Justice Antonin Scalia, who died in his sleep during a hunting trip in Texas’ Big Bend region. The principle at least made some sense. And no less than then-Vice President Joe Biden blathered for the idea during his own Senate tenure decades ago.
So what of this now-established Republican principle in 2020 with yet another high court vacancy thrust upon the nation with last week’s death of a liberal icon, Justice Ruth Bader Ginsburg, but this time with a Republican in the White House and a hard-fought presidential election even closer on the calendar? Well, the Republican hierarchy now tells us, forget that principle. Doesn’t apply in this instance. And too many Republican followers seem just fine with this ideological about-face.
It’s a wonderful bit of legal hypocrisy from the law-and-order crowd.
This is why many of us in the journalism trade these days refer to “principled conservatives.” So many of those masquerading as conservatives lack consistent principles. And if you’re not consistent in your principles — well, you’re not really principled. But then many of us would not describe today’s Republican Party as conservative anymore but robustly populist, in the sense anything goes if the mob or their idol in the White House says so.
One might think some latter-day Republicans would gag on the conflicting cultural impulses they see as defining them. During my days in the Republican Party, and even now, many Republicans assumed a swaggering, no-nonsense, patriotic, John Waynesque, a-man-is-true-to-his-word sort of persona, one that I equated with honor, veracity and integrity. Only over the past several years did I realize once and for all that this persona had decayed into caricature, not character. If a party’s membership is willing to look the other way when a candidate repeatedly vows that Mexico will pay for a border wall to stem immigrant hordes, then in office violates his constitutional oath and his campaign pledge to instead raid U.S. military appropriations to build it in defiance of Congress, Constitution be damned, something cancerous is obviously eating away at both party and nation.
Is anyone, for instance, reassured by Senate Republicans’ support of a resolution Thursday reaffirming support for a peaceful transition of power in the presidency if their man in the White House loses the November re-election, given that the president loudly refuses to commit to such a time-honored American tradition?
I’ll never forget leaving Baylor University’s annual People’s Law School early in the afternoon of Feb. 13, 2016, freshly invigorated by a strong dose of constitutional law, foundational principles and legal ethics, only to learn that Justice Scalia had died. Within hours, Republican Senate Majority Leader Mitch McConnell had issued this decree: “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”
Now Republicans say: Well, that rule of ours shouldn’t apply when the president and Senate are controlled by the same party.
Good luck finding any mention of this conditional footnote in any Republican statements from 2016. To quote Ben Jealous, president of People for the American Way, last weekend: “There’s nothing that the American people loathe more than politicians who blow in the wind.”
Nor should Democrats look to the Constitution to help them in this latest high court dust-up. An April 2016 forum at Baylor Law School in partnership with the American Constitution Society convinced me that, while the much-ballyhooed Republican principle of 2016 was not, strictly speaking, unconstitutional, it also wasn’t inherently constitutional. That’s one of those legal niceties that also regularly contort court rulings and confound and frustrate the public, so perhaps it’s best that I just quote Baylor law professor Rory Ryan, who teaches constitutional law and federal courts. During that Scalia lovefest with such faculty heavyweights as Brian Serr and David Guinn and former federal judge and then-Baylor president Ken Starr, Professor Ryan acknowledged all sorts of precedents for what Senate Republicans were doing that election year.
“And the debate is not whether it’s constitutional,” he said. “The debate should be whether what they’re doing is good, because there is no constitutional constraint, there’s nothing about [requiring] Senate confirmation hearings. They have to consent, and if they don’t want to consent, they can not consent for any reason. But just because the Constitution doesn’t constrain their discretion doesn’t mean their discretion is unconstrained, because the political branches [the president and the Senate] answer to the people. And as long as the country is OK with it and will continue to vote for the party, then that is the check on their discretion.”
Everyone on the panel concurred, though Judge Starr added an afterthought: “Howard Baker, who was Senate majority leader many years ago, and a truly great man, made an off-the-cuff comment that I heard with my own ears. He’d found over his years of service, especially in the United States Senate, that good government was good politics. And I think good government calls for us to have a [confirmation] hearing and vote up or down.”
Never happened. Justice Neil Gorsuch now occupies what some brand “the stolen seat” of the Supreme Court.
During the Baylor forum, Starr spoke of Justices Scalia and Ginsburg and their strong friendship, ideological differences aside.
“It is a great example for all of us in civility, and to disagree, even with sharp language, without being a jerk,” Starr said. “Nino and Ruth were extremely fond of one another, and I hope within your reading, you read Ruth’s testimonial to Nino and how they loved opera together. They became such great friends on the United States Court of Appeals [on which Starr once served]. And when Nino was asked, when the vacancy came that Ruth was then nominated for, ‘Who would you most like to spend essentially the rest of your professional life with?’, and he was given the choices of Professor Larry Tribe of Harvard, whom he knew, and then-Gov. Mario Cuomo, father of Andrew Cuomo, in response he said, ‘Ruth Bader Ginsburg.’
“He had such regard for her professionalism, her intellect, cream-rises-to-the-top [qualities], even though he knew he would end up disagreeing with her. For her part, Ruth said, ‘I very much look forward to Nino’s dissents.’ He would famously send her early copies so she would have more time to respond. That’s collegiality.”
Friendship and trust
Their famous friendship is arguably typical of judicial, ivory-tower elites who enjoy rigorous intellectual treks through winding historical corridors and constitutional labyrinths. Consider Scalia’s adjectives for Ginsburg, as described by Starr: “intellect,” “professionalism,” “collegiality.” Such words naturally conjure up the word “principled.” The real danger now is that with one party jettisoning all principles in the interest of victory, the other party will redouble its efforts to do the same, throwing out the rulebook, throwing out the political moderates and similarly throwing out any possibility of being vulnerable to shame. For better or worse, this presidential election may now prove as much a national referendum on Roe v. Wade and the direction of the courts as Republicans’ reckless handling of the pandemic, disregard for spiraling national debt and aggravation of racial injustice. Or it could be about something else.
Friendships and collegiality rooted in intellectualism, mutual respect and the fine arts may well endure ideological differences but even they won’t suffer colossal breaches of trust. And when one group of Americans labels another group of Americans the devil’s spawn, baby-killers, anarchists and socialists; when the other group labels the former group fascists, neo-Nazis, white supremacists and liars, the nation is ripe for revolutions without the foundations that once secured this republic and its liberties. Therein lie even more impulsive schemes such as the dangerous idea of court-packing, which the Constitution also doesn’t specifically restrict, and gradual erosion of the very concept of judicial review in favor of an almighty executive branch and an increasingly supine, nihilistic legislative branch. In case you haven’t noticed, we’re well on our way.