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Ginsburg, McConnell and the death of political norms 

| Friday, September 25, 2020

Kerry Schneeman | The Observer

Senate Minority Leader Chuck Schumer is accusing Senate Republicans of employing “brute political force.” Senate Judiciary Chairman Lindsey Graham is implying that after the Kavanaugh confirmation hearings, he doesn’t trust Senate Democrats to respect institutional norms. In the wake of the sudden death of one of the most iconic figures in the 21st century American legal world, it appears that Congress is nearly ready to expose itself for what it truly is: 408 men and 127 women desperately fighting for increased power. The facade has been dropped, and we’re finally going to meet the terrifying man behind the curtain. 

How did we get here? As I’m sure almost all of you know, Ruth Bader Ginsburg, Associate Justice of the Supreme court of the United States, passed away Friday. This presents President Trump and Senate Republicans with an opportunity to appoint and confirm, respectively, the court’s sixth Republican-appointed Justice. Justice Ginsburg’s passing comes amidst pressure from the left for the Democratic party to support court-packing, which would allow Congress and a Democratic president to add extra seats to the court and to fill those seats. The tragic event also occurred 46 days before our presidential election. In 2016, Senate Majority Leader Mitch McConnell refused to consider President Obama’s nominee to the court, Judge Merrick Garland, based on the fact that it was an election year. Now, Democrats are calling McConnell a hypocrite for pushing forward with the nomination and confirmation processes for Justice Ginsburg’s replacement. 

Over the years, members of both parties have edited the normal procedures for judicial nominations in order to meet their political goals. In 2013, then-Majority Leader Harry Reid, a Democrat, changed the number of votes needed for confirming most executive and judicial nominees from 60 to 50. In 2017, Senate Republicans expanded this procedure to include Supreme court nominations.

As I mentioned, McConnell is being accused of hypocrisy because he refused to consider Garland in an election year but is now dedicated to supporting President Trump’s nominee on the brink of an election. To deny these allegations, McConnell himself is relying on two justifications for his apparent switch. First, he is careful to say that no Senate has confirmed a Supreme Court nominee who was nominated by a President of the opposing party during an election year; because the majority of the Senate and the President are in the same party, he sees no reason why not to go forward with the nomination. Second, he claims that Democrats have used every available tactic to influence Supreme Court membership in the past and have committed themselves to doing the same in the future; he implies that, given this lack of respect for norms on the other side, Republicans are free to do what they feel is necessary. 

Both of these justifications reveal the same reality: Republicans are done with pretending that Supreme Court confirmations aren’t blatantly partisan processes. They’ve all-but-committed to the principle that they will only confirm a nominee if they are in the same party as the President. It’s hard to say that Democrats are much different, given Schumer’s statement that, “Once we win back the majority, God-willing, everything is on the table.” All notions that the Supreme Court is beyond purely political machinations have vanished. Both parties will use whatever means necessary to exercise control over the court and to stop the other party from doing so. 

This absolute politicization of the court will not be healthy for the American republic, for a number of reasons. First, the court has, in the past decades, decided some of the most controversial social issues in American politics, including same-sex marriage, affirmative action in college admissions and, of course, abortion. With an entirely political court, these issues may very well be returned to the forefront of our hyper-polarized and hyper-contentious national discourse.

Second, the Supreme Court was, until now, one of our federal government’s most trusted institutions because of its recognized lack of politics. Just last year, a poll found that 57% of registered voters trusted the court more than the other branches of government. Even more than that believed that the court was not political, but instead simply interpreted the law in every case. If public trust in the court deteriorates because of its openly political nature, what does that say about trust in our federal government overall? How can our government operate in the interest of its citizens without their trust?

Third, and in my opinion most importantly, the politicization of the Supreme Court reveals what American politics has focused on for a long time: power. 

If our elected representatives were truly dedicated to promoting the well-being of the American people, this would not be happening. Congress would be content with a qualified and politically-neutral Supreme Court simply interpreting the laws because Congress itself has the power to change those laws. Our Congress, instead, is not productive enough to actually make laws; it is too partisan, too self-interested and too greedy for influence to perform its constitutional task. They have given up on writing laws to benefit the American people and decided to focus their energy on eliminating any obstacles to their power, including our constitutional structure.

Instead of a three-way power struggle between executive, legislative and judicial branches, as our founders imagined, we are heading towards a two-way power struggle between Democrats and Republicans. There will be no checks and balances in this struggle, only “brute political force.” I hope and pray that our country can survive it. 

Vince Mallett is a senior majoring in Philosophy, with a minor in Constitutional Studies. He currently lives off-campus, though he calls both New Jersey and Carroll Hall home. He can be reached at [email protected] or @vince_mallett on Twitter.

The views expressed in this column are those of the author and not necessarily those of The Observer.

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