The Other Side of the Battle to Replace Justice Kennedy

(Bloomberg Opinion) --

On Wednesday, I offered Democrats some quick, preliminary thoughts about how to approach the retirement of Supreme Court Justice Anthony Kennedy. Today I would like to provide a few suggestions that I hope Republicans will consider. As I mentioned before, I’ve had a long time to hone my views. I’ve been writing, teaching and lecturing about the confirmation process for more than 30 years. Here, then, are my thoughts for the GOP:

Don’t be cheering in triumph. The retirement of a member of the high court should always be a sober occasion. So should the process of choosing a successor. The last time President Donald Trump filled a vacancy, I wrote in this space that his process risked transforming the announcement into something akin to a game show. Whether you agree or not, at least consider this: In all our conversations about the Supreme Court, we should avoid any semblance of a death watch, as though we’re rooting for this or that justice to get sick and have to step down — or to pass away. We live in an era when partisans on social media routinely wish horrible things upon their opponents. If the Republican Party can avoid treating this moment as one for celebration, perhaps it can even elevate the debate.

Related coverage of Kennedy’s retirement
The Editors: The Supreme Court After Kennedy
Ponnuru:  Kennedy’s Replacement Should Be Amy Coney Barrett

I’d urge Republican senators and White House staffers to do a lot of consultation with the Democrats. With the death of the filibuster, there’s no way to block the nominee, but that’s beside the point. One way to improve comity in the future is to practice it now. Don’t be the Borg way (“Resistance is futile”). Maybe not in 2021, maybe not even in 2025, but one January you will wake up and discover that your party controls neither the Senate nor the White House. Surely you’ll insist that a Democratic president seek your advice as well as your consent for judicial nominees, just as the Constitution provides. So take the first step.

And take the step seriously.

Resist the temptation to ask in private what the nominee will be careful not to answer in public. It’s tempting to construct a bench peopled entirely with individuals who have already promised, even if behind closed doors, to vote a particular way on particular issues. But to call such an institution a court is to lapse into the all-too-common incoherence of the age.

Bear in mind President Abraham Lincoln’s response to Representative George S. Boutwell of Massachusetts, who had written to congratulate him on the nomination of Salmon P. Chase to serve as chief justice of the Supreme Court: “We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it.” Now consider the next sentence of Lincoln’s letter: “Therefore we must take a man whose opinions are known.”

Here our greatest president is being clever. As much as anyone, he understood that views change over time. Certainly his own had. And even after we sift a nominee’s past opinions and articles, even after we speak to their colleagues and friends, we will never really know the nominee’s views. We’ll have to guess. Here the limited information with which we act is a feature, not a bug. In building a court for the long run, we’d be foolish to spend our efforts obsessing mainly over the issues of the day.

Whoever is selected, advise your president not to go on the attack against anyone who offers the smallest criticism of his nominee. I realize that he’s not likely to follow your advice, but at least you can try. There’s no perfect candidate, and there are always fair and legitimate questions.

The process will be vicious enough without Trump throwing bombs every few days. Nowadays every confirmation fight is vicious. We might never again see a nominee who can command a bipartisan majority. For most of the 20th century, overwhelming votes in favor of the president’s nominee were the norm. By most counts (including my own research), only about 1 in 4 were even seriously contested.

But the reason isn’t that the issues that divide us nowadays are deeper than they were a generation or two ago. In 1967, in the midst of a land being torn in two by racial tension, Thurgood Marshall was confirmed with only 11 “no” votes. Only one senator, Joseph McCarthy, voted against William Brennan, who was nominated in the midst of a Red-hunting era he had openly criticized.

Want more recent history? Antonin Scalia was confirmed 98-0. Ruth Bader Ginsburg was confirmed 96-3. Kennedy himself sailed through by 97-0. Think these majorities came because the nation faced no deep and fundamental divisions? Wrong. All of them came after Roe v. Wade, the decision that energized — and largely created — what would become known as the religious right.

No, the reason for these and many other strong majorities was not because the issues were more divisive. It’s because the parties had not yet turned the confirmation process over to the interest groups that control both parties on the issues and won’t allow it. The impulsive online mobocracy will only make matters worse. The president’s tendency to swirl angrily into the midst of every controversy always fans the flames. Probably you can’t restrain him, but you owe it to the court and the country to make the effort.

If by some chance the confirmation fight does drag on past the midterm elections – and if your party loses control of the Senate – the likelihood that the Democrats will confirm any Trump nominee is arbitrarily close to zero. Even should the president be re-elected in 2020, as long as the opposition holds the Senate, your party will be punished for its refusal in 2016 to allow a vote on President Barack Obama’s nomination of Judge Merrick Garland.

So you’re stuck with that.

I see only two ways out of that particular mess of your own making. First, don’t lose the Senate (or, should you lose it, win it back fast).  Second, if that plan falls to pieces, go back and take a look at episode 17 of season five of “The West Wing.” Clever idea there. Maybe if all else fails you can use it.

With all of that said, let me conclude with pretty much the same suggestion I made to the Democrats. These battles are rocky, on both sides. Do your best not to hurt anybody.

To contact the editor responsible for this story: Brooke Sample at bsample1@bloomberg.net

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