Last week, Supreme Court Justice Ruth Bader Ginsburg died at the age of 87. She was a champion of women’s rights and equal justice. But the thing that stands out to me the most was her enduring friendship (which started long before she joined the Supreme Court) with fellow Justice Antonin Scalia. Ideologically, the two could not have been further apart — Ginsburg a liberal, feminist icon, Scalia a stalwart of conservative jurisprudence. Yet, somehow, these two were still able to see the humanity in each other and enjoy a vital and lasting friendship. How? Perhaps it was because they shared a love of country and purpose. They just pursued it in different ways, ways that they respected in each other even while disagreeing. If only some of that collegiality and higher purpose could be injected into our politics in general and the naming of Ginsburg’s replacement in particular.
The Constitution is clear on filling a Supreme Court vacancy. In Article II, Section2, Clause 2 it states that “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court….” Nowhere does it state any limitation on this power such as delaying till after an election in an election year. Currently there is a lot of debate about whether or not the President and the Senate should wait. There is neither a precedent or history of this happening. The Constitution, though, is clear. There is no requirement to wait.
The Democrats and Republicans are both playing a lot of politics with this situation, which is to be expected. The real problem, from my perspective, is the road this is taking us down. Because Senate Republicans have decided to take a vote on President Trump’s nominee this year while they chose not to take a vote on President Obama’s nominee in 2016 (the very definition of hypocrisy), there is talk of the Democrat’s taking revenge. The next time they control both the White House and the Senate, some scholars are suggesting that Democrats may attempt to pack the Supreme Court. This would be a big mistake for our country.
US political power and influence have always swung back and forth between the dominant two parties, currently Democrats and Republicans. That’s how our system works. But lately, both sides have tried to set themselves up to be the permanent party in power. This hasn’t yet gone so far as to flout our constitution and laws flagrantly, but it feels like we may be headed there. We have already started to abandon our well-established precedents.
One of these precedents was to never govern by executive order. This was broken by President Obama starting in his second term. He began to use executive orders to accomplish what he couldn’t through legislation due to the Republicans in Congress opposing him. This had never been done before because of the fear that a subsequent president of the other party could simply undo all those executive orders and bypass Congress himself to accomplish his goals without Congressional legislation. President Trump has done just that. While this is not strictly illegal or unconstitutional, it is highly troubling. This is not how the Constitution designed things to work. Congress is not there for the President to find a way around. It is the governing body of our country. It is the most direct representation of the citizens at the national level. The first article of the Constitution governs the legislature and is the longest of the first three articles.
Now we have the dangerous idea of packing the court. It has the same problem that governing by executive order has. If the Democrats add four more Supreme Court Justices in order to tilt the court back in its favor, what’s to stop the Republicans from doing the same when they next control the Presidency and the Senate? Where will it end? How many Supreme Court Justices will we end up with? Thirteen? Seventeen? Twenty-one? You get the picture.
This isn’t politicians playing politics. It’s beyond that. It’s politicians trying to game the system in their favor. That has to stop. We the voters need to put an end to it. Yes, Senate Republicans are behaving as despicable hypocrites. They should have voted on Obama’s nominee back in 2016. If they didn’t want to confirm him, they should have defeated his nominee on the floor of the Senate. And the proper answer to that kind of behavior should have been to vote out those Senators who behaved so inappropriately. But that didn’t happen. Why? Well, because we as Americans have come to identify with our “side” in politics as much as our politicians. Instead we need to be more like Justices Ginsburg and Scalia.
The secret to their friendship was that they saw each other as individuals. They shared a “reverence for the Constitution and the institution [they] serve[d]” though they differed in their interpretations. But they never decided that the other was unworthy of their friendship and respect. We need to be the same way with those who hold political beliefs different from our own. Too many times, we vilify the other side, shaking our head in disbelief that someone could think that way or vote for that person. Perhaps a better response is to actually ask. What issues are important to you? Why do you think that way? But then we need to listen with a desire to understand. If we do that, perhaps we will discover that our goals aren’t that different from theirs. We just disagree on the ways to get there. Then we might be in a position to work together to find ways to compromise on achieving those shared goals. That’s what we need our politicians to be willing to do — compromise to achieve our national goals. But they sure won’t as long as the people who vote for them won’t.
So seek out opinions different from your own. Understand how others are different from you, how they think and what they value. Who knows, you might discover as the leads in the opera Scalia/Ginsburg sing, “We are different. We are one.”