This is the right appeal. Republicans undoubtedly can choose, six weeks before the election, to abandon prior principles and install a new justice. The question is whether they should — for their decision to proceed will have consequences greater than the election and greater even than the legitimacy of the Supreme Court. It will deliver the coup de grace to the virtue on which democratic governance depends: self-restraint.
The Founders recognized that checks and balances were only as good as the people who used them. “As there is a degree of depravity in mankind,” James Madison wrote in Federalist 55, “so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.”
The author of the Constitution further argued that “were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.”
Now, however, self-control has given way to political jealousy — power exercised without responsibility, what leaders should do replaced by what they can get away with — and we are devouring one another.
Trump’s Justice Department on Monday labeled New York, Portland, Ore., and Seattle, three big cities governed by Democratic mayors, as “anarchist jurisdictions” — and threatened to cut off federal funding if they don’t behave in a manner more to Trump’s liking.
Trump held the Republican National Convention at the White House, wrecking the South Lawn and the Rose Garden, as senior officials in his administration blatantly ignored laws limiting their political activities.
A Trump ally sabotaged the U.S. Postal Service in an effort to limit its capacity to handle election ballots — and Trump has boasted about denying it funding for the same purpose.
Trump withheld U.S. military aid to an ally threatened by Russia unless that ally assisted his reelection.
He has effectively eliminated congressional oversight by refusing to provide documents or to make officials available to testify.
He declared an “emergency,” even while acknowledging there wasn’t one, to take funds from the military to pay for a border wall.
He mobilized the federal police and the military against U.S. citizens exercising their right of assembly.
In virtually every case, Republicans in Congress have allowed it.
Repeatedly, we ask ourselves: Can he do that? In most cases, it turns out he can. With a subservient Congress and courts reluctant to get involved, the president’s vast powers are limited only by self-restraint, which in Trump’s case is absent.
Republicans might pause to consider how things would look if a President Biden, with the blessing of a Democratic Congress, acted in a similar way.
Biden could add as many seats as he wishes to the Supreme Court with a party-line vote (Franklin D. Roosevelt’s 1937 “court-packing” legislation only failed because of objections from within his own party).
Biden could likewise add the District of Columbia and Puerto Rico as states using a simple majority in Congress.
Biden could label states without strict gun laws as “anarchist jurisdictions” and move to cut off their funding.
He could deny press credentials to Fox News and other critical outlets, and direct the Justice Department, the Federal Trade Commission and the Federal Communications Commission to harass their owners, as Trump has done to disfavored outlets.
Biden’s Justice Department could block prosecutions of Democrats and instead direct them to probe former officials from the Trump administration. He could declare a phony emergency and shift subsidies for Republican-controlled rural areas to Democratic-run cities.
I doubt Biden would do much of this — but it’s hard to make the case that he can’t. Republicans, in their quiescence over four years, and now in their unprincipled attempt to stack the high court, are plunging us into the abyss.