Ginsburg’s ideological proclivities were not unknown. (One of the Senate’s three holdouts, North Carolina’s Jesse Helms, argued that she would support the right to abortion and “is likely to uphold the homosexual agenda.”) But in 1993, such ideological considerations were generally outweighed by an institutional norm.
Republican senators such as the one I worked for (Dan Coats of Indiana) thought that presidents, as a rule, deserved deference to their judicial choices. The Senate’s role, as Federalist No. 76 defined it, was to prevent “the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” The confirmation process focused on professional fitness and judicial temperament rather than ideology. And by those standards, Ginsburg was a brilliant choice.
As the political world moved toward securing ideological outcomes at any cost, this norm of the Senate minority was universally abandoned. With the passing of Ginsburg, a norm of the Senate majority may fall as well.
The president and Republican Senate have the constitutional right to fill a Supreme Court vacancy two months before a presidential election, or in the lame-duck session just weeks before an administration ends. But proposing a nominee within sight of a presidential election has seemed unseemly — especially among Republicans who used (and stretched) the norm to explain blocking consideration of Merrick Garland in 2016.
Consistently applied, the norm makes sound institutional sense. A parting-shot nomination smacks of being a ruthless political game rather than the reflection of a democratic choice. A Senate confirmation battle threatens to superheat a presidential election already boiling over with destructive passions. It would leave the Supreme Court looking more political and less legitimate. And the prospect is already leading to promises of retribution by Democrats — such as ending the Senate filibuster or packing the Supreme Court — that would push this country further toward being a nuclear banana republic.
At some point, running an institution like the Senate to its limit becomes running it into the ground. At some point, ruthlessly exercising the rights of the majority becomes destroying the dignity of the minority. And that can poison the relationship between majority and minority that is minimally necessary for an institution to function. The U.S. Senate is exhibit No. 1.
The danger, however, reaches deeper, as we revise our standards of self-government. Yuval Levin of the American Enterprise Institute warns that we may be entering “a moment of decision about the future of our regime.” “Do we consider social peace a high priority,” Levin asks, “or does every side press every technically permissible advantage (because the other side does) until we have nothing left to defend?”
As Senate majority leader, Mitch McConnell (R-Ky.) is advancing the idea that a favorable ideological composition of the Supreme Court is the greatest prize in U.S. politics and that any partisan means necessary to achieve it is therefore justified. Neither of these ideas — Supreme Court supremacy or unrestricted partisan warfare — is particularly conservative. And the combination is causing a cycle of ruthlessness and humiliation that threatens to disable the Senate and destabilize our politics.
The addition of a responsible conservative to the court is a valid goal. But what McConnell seems poised to do, while constitutionally permissible, is deeply unwise.
Republican and Democratic activists would probably argue that all this talk about norms is sentimental rubbish. They might respond that the stakes are too high for unilateral self-restraint, which is really ideological surrender. But some things that they disdain — including prudence and honoring the dignity of the legislative minority — are what allow institutions to persist through time. Such traditions can appear like ornamental filigree on the building. In removing it, we find it plays a structural role.
Someone needs to end the escalation that threatens democratic institutions. And it is appropriate for Republicans to play that role. For the past four years, President Trump — with the complicity of Republicans in Congress — has used a scythe of bold, ambitious ignorance to cut down democratic norms, left and right. Only Republicans in the Senate can now display a spark of institutional integrity, defy their worst partisan instincts and begin the healing.