The Scalia Succession and the Trials of Principle

Like many a battered idealist I’m alternately wearied, irked and darkly amused by the relation of political reality to political principle. I’m talking about the gap between what individuals, institutions and governments do, in doggedly pursuing their interests, and what they say they’re doing.

Here’s a typical example. In the middle of a close political race, the challenger suffers some embarrassing revelation about his past that drives him down in the polls. Desperation afflicts his campaign. And now, suddenly, the incumbent decides there will be no more debates in the campaign. He issues a high-minded announcement. “We’ve all seen that debates do little to help clarify issues,” it goes, “so I have decided to use other forums to help voters more clearly contrast my candidacy and that of my opponent.”

In theory – in principle -- it shouldn't be difficult to get candidates to agree that debates helpfully contribute to voter education, or that they don’t, irrespective of who is winning or losing. But the reality is that only those candidates who judge that they have something to gain from debating (or, at least, something to lose by not debating) will take part. The incumbent in my scenario has calculated that he has nothing to gain from further debating, and everything to lose, so he won’t debate. Please wait for the relevant principled explanation.

What is it that requires the fig leaf in these situations? A right-leaning economist friend of mine reminds me that “the pretense of open-mindedness and principle is really just a part of human nature.”  Everyone likes to think of himself as open-minded, she observes; no one wants to look selfish or petty. “I don’t want to sound jaded,” she chides me, “but as a seasoned citizen you must have seen these things many times.”  

As Tom Wolfe would say, too true! But the “just human nature” explanation is only a start, really. Politically there’s a lot more to the fig-leaf phenomenon. People not only want to feel good about themselves; they want to prevail. That means taking your case into the public realm and presenting it. And that requires tools and weapons.

Let me digress to tell a story closer to home. A few years ago, a regional public-school provider proposed building a magnet grade school on an underused former college campus near where I live. As part of a neighborhood committee charged with advising the city zoning board, I became convinced the project was a good thing. Meanwhile a group of neighbors on the (wealthy and well-connected) street adjacent to the site kept throwing up one objection after another, raising traffic, environmental, historic-preservationist, tax-related and other concerns. Each objection was assiduously addressed by the school provider via modifications to the plan. But opponents were never mollified; they simply raised further objections. It became clear that they would never say, “OK, that pretty much takes care of our concerns, so let’s go.” In fact they were implacably opposed, for basic NIMBY-type reasons.

But they wouldn’t admit that. Instead they sheltered behind, and wielded, one principled-sounding argument after another. At the very last public meeting, one of the most implacable opponents made a genial-sounding plea, before a big crowd, for a six-month project delay, “so we can all get more information.” “Who knows,” she went on, “maybe when I’ve really read all the fine print, I'll be the most enthusiastic supporter.” Right. What she really knew was that the school had a fixed opening date required by the city -- and that a six-month delay would kill the project. I won’t soon forget the look on the woman’s face as she made her pitch, the gleam of triumph – as if to taunt those who were in favor, Aha, try to argue against this! Because who can possibly be against more information, right?

It’s no coincidence that the woman works as a political operative and is known for her take-no-prisoners approach. She understood that the rules of public discourse proceed along principled lines. You can't stand up and say “I derive a lot of personal benefit from the underuse of this property, I love my little nature park, love walking my dog there, I don’t want a bunch of noisy inner-city kids running around, so I'm gonna push back all I can.” Your personal vested interest won’t persuade people who don't share it – or give decision-makers cover to do what you want them to do. And so you assemble a whole bunch of principled ideas. These are not actually principles, not even really ideas. They are tools and weapons tohelp you win (which, in this case, her side did.)

Now to the current imbroglio over Justice Antonin Scalia’s successor. No sooner did news of his death filter out than Republican politicians and presidential candidates were outdoing each other in insisting that President Obama shouldn’t even attempt to nominate a successor. How can they justify that position, when the President has a clear, constitutionally-mandated duty to do just that? Essentially the argument reiterated by all these ostensibly Constitution-worshiping Republicans is that no Supreme Court justice should be nominated in an election year, because to do so ignores the will of the people. “The American people should have a voice in the selection of their next Supreme Court justice,” says Mitch McConnell. “Therefore, this vacancy should not be filled until we have a new president.”  Um, the people already have used their voice and expressed their will. It is embodied in the current occupant of the White House, who moreover has plenty of time left to do the job the Constitution tells him to.

Both historically and constitutionally, as historian Timothy Huebner points out, President Obama has precedent on his side. Article II of the Constitution stipulates that the president shall nominate and appoint Supreme Court Justices “by and with the Advice and Consent of the Senate.” There’s nothing in it about deviating from this plan in an election year. Thirteen times in our history a Supreme Court vacancy has opened up during a presidential election year. In eleven of these instances, the president nominated and the Senate acted. “In all five cases in which a vacancy occurred during the first quarter of the year,” Huebner reports, “the president successfully nominated a replacement.” The notion that allowing the seat to remain open during an election year is simply following “common practice,” as Republican Senator Rob Portman of Ohio says, is simply wrong, as Amy Howe writes at

A good friend of mine, a brilliant legal scholar with a long and varied legal career in and out of government – politically a centrist Democrat who clerked on the Supreme Court for Chief Justice William Rehnquist -- writes to me that “there is no principled basis for the Republican position.”  He continues:

As the Republicans like to say, elections have consequences, but the only relevant election right now is the one that gave Obama a second term in 2012.  He has a constitutional duty to nominate a successor to Scalia and the Senate has a constitutional duty to "advise and consent," which should mean holding a hearing for and voting on the nominee.  And there is plainly time to do so.  The President has about 340 days left in office; Kagan and Sotomayor were each confirmed less than 90 days after they were nominated.  The modern record for longest time between nomination and confirmation was the 99 days it took to confirm Thomas.  O'Connor was confirmed in 33 days.

My friend predicts that ultimately the Republicans will have a tough time declining to hold hearings on a nominee. “On the other hand,” he adds, “I'd be shocked if Obama's nominee were confirmed.”  Bottom line, in his view: “Republican intransigence will lead to a Court with vacancy for over a year, which I'm confident is unprecedented in the modern era.”

An ugly impasse, in other words – and the honest position for Republicans to take in accounting for their role in forcing it would go like this:  “The death of our favorite conservative justice leaves a four-to-four split on the court, so the appointment of the next justice has jurisprudential and ideological implications for decades to come. Although nearly a year remains in the tenure of a twice elected President, and although he has a clearly mandated authority and indeed responsibility to nominate a successor, we dislike the kind of nominee he is likely to choose, and so we will use whatever powers we can muster to usurp this function and delay the choice of a successor until such a time as we hope to be able to make that choice ourselves.”

The problem with not speaking like this, with choosing instead to cloak naked power plays in the bright raiment of principle, is that in so doing, you damage and diminish the polity’s capacity for principle; you may achieve your goal, but over time the corollary damage, in a civic sense, is high.  Amid the scrimmage of interests that is politics, the perpetual reach for a fig leaf of principle amplifies voter cynicism immensely.

And it isn’t just our capacity for principle, or even the idea of disinterestedness itself, that’s being damaged. What about our institutions?  What if we had a Supreme Court that operated the way Republicans are acting? Oops! Anyone remember Bush v. Gore? That ruling, you will recall, contained the unusual self-limiting proviso that the ruling itself bore no portable implication for any future cases – in other words, that it was unprincipled. Which made it pretty hard to see it as much more than a machine designed to ram home a result that five justices preferred.

Which is the chicken and which is the egg? Does an intransigent and unprincipled political culture get the Court it deserves? Or is it the other way around?  



Rand Richards Cooper is a contributing editor to Commonweal

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