A Pure Case

With the death of Justice Ruth Bader Ginsburg, Senate Majority Leader Mitch McConnell has the once in a generation opportunity to reshape the Supreme Court and bring it in line with his, or his constituency’s, political preferences. All he has to do is be a complete hypocrite. For when President Obama nominated Merrick Garland for a seat on the Court, McConnell blocked it on the ground that it was a Presidential election year and so the decision should await the election of a new president to see what the people really wanted. But now in another presidential election year, and indeed less than two months from election day, McConnell, within hours of Ginsburg’s death, has pushed to replace her ASAP. One may presume he fears the election going against his party and hence their losing the chance to shape the court despite the preference of the people. 

            Even before I heard about McConnell’s statement, I knew that he would do this. The minute I heard of Ginsburg’s death I emailed a friend, “I can only anticipate with gleeful amazement how McConnell will frame his guaranteed double standard.” My friend emailed back, “He will find some irrelevant distinction and claim it is relevant.” And indeed that is exactly what he did. McConnell now argues that when Obama made his nomination of Garland, Obama had been a lame duck, since it was the last year of his second term; whereas the fact that the people have chosen both a Republican President and a Republican Senate shows that they want to be sure the Court goes conservative. Never mind that the popular vote went to Hillary Clinton, a Democrat, or that all the polls now show the Republicans heading toward losses in the upcoming election. He has found his “principle,” and on that he will stand. 

            The point I want to make in this essay is not that McConnell is dishonorable, or that his choice is a pure case of hypocrisy or double standard. In fact that is what I feel in my gut. But I have become accustomed to dismissing the testimony of my gut. As I put it in the title of one of my books, It’s Just a Feeling. Or to use my favorite analogy, it’s like a visual illusion, which one cannot shake but nevertheless knows to be an illusion. My more considered judgment in the present case, then, is that McConnell is probably sincere. Indeed, his sincerity could well be as deep as that of my friend’s and my cynicism. 

            Let me give two lines of “evidence” for this judgment. One is that it is hard to believe (or at least for me to believe) that at least half the Senate (plus the tie-breaking Vice President as President of the Senate), which is to say (almost?) every single Republican is so lacking in character as to go along with a breach of honor as blatant as this appears to my friend and me to be. Yes, surely, every one of them must contend with a constituency that must overwhelmingly favor seizing this opportunity to reshape the Court and could care less about the nicety of respecting a precedent that was shaky to begin with; and so their very “job” could well be on the line. This is ample grounds for suspicion that at least some of them would gladly trade principle for expediency. But all of them? Are people like McCain and Romney really so rare? Were their renegade votes at critical junctures of the present administration emblematic of “the conscience of the Senate”? or are they more correctly interpreted as due either to the senators simply having different opinions but no more nor less integrity than many of their colleagues, or to political (or reputational, since McCain would not be running for office again) calculations of their own? 

            A second consideration is that if the tables were turned, I haven’t the slightest doubt that the Democratic senators protesting the loudest now would act exactly as McConnell and all the rest of the Republicans are. Of course they would have the advantage of having opposed the (supposed) precedent set by McConnell with regard to Garland, which at the time they (and I) labeled bogus. But that is not what they are arguing now: They are saying now that it is hypocritical for the Republicans to violate their own precedent. But is it not just as hypocritical for the Democrats to go against their own objection to the original precedent? Two wrongs don’t make a right. I think they are in an impossible situation now, since it would tie their own hands in future if they had another Garland-type opportunity, to affirm now the precedent they had previously denied. But of course it wouldn’t tie their hands at all, because they would concoct their own “irrelevant distinction and claim it is relevant.” Guaranteed. 

            The more general lesson I draw from this episode is that objective principles and values and morality are what is really bogus. All of the parties to the present dispute claim that right is on their side. But while I do not care to doubt that just as many Republicans as Democrats are sincere in this meta-conviction, what is actually calling the shots for all of them, I maintain, are nonmoral considerations. And if that is what makes the world go ’round, I see not only no use for morality but deem it positively baneful. My reason for the latter is that morality, or the belief in morality, hardens the positions of all the parties to a dispute, thereby putting resolution ever further out of reach, or making it more bloody than it need have been. 

            And in the present situation? Right now I urge Senate Minority Leader Schumer and the rest to do whatever is in their power to balk the selection of a new Justice before the inauguration … which they will certainly do without my advice … and, failing that, which is likely, to turn at once to strategizing the best way to take advantage of the new reality, which, again, I am sure they will do anyway. What they won’t do, alas, is follow my “advice” to drop the moralizing. Why not? Because, by their calculations – or simply spontaneously, since, again, most Democrats, like most Republicans, probably genuinely believe right is on their side, whatever they do – moralizing the issue is one of the most effective ways to achieve what they want. 

What is my position, then? since I seem to be caught in a contradiction. For on the one hand I am urging Schumer et al. to “do whatever is in their power,” but on the other hand I want them to tie one hand behind their back and not use their power of moralizing the issue. But I have two ways “out” of this dilemma. One is to deny the empirical claim that the moral move will in fact help them achieve their (and my) aim. But it’s anybody’s guess if that is true. So I rely more on a second claim, which is much stronger (because it is simply about myself), namely, that I myself have a second aim which is stronger than my desire to balk the selection of another justice by Trump and McConnell, namely, to help midwife a world with less conflict and animosity in it. Of course this too relies on an imponderable empirical claim, namely, that the elimination of moral thinking would in fact reduce overall conflict and animosity in the world. But that is what I believe.

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