Honoring traditions and being part of the solution post-RBG

This ignores the fact that, from a constitutional perspective, the only things that matter are that the president nominates judges and the senate must consent to that nomination. The Constitution says nothing about timing.

Politicians respond to incentives and the voters that elect them. If you object to how they act, consider for a moment what message you’ve been sending to our elected officials.

If you’re one of those objecting to a nominee being considered prior to the 2020 presidential election, let me ask, did you criticize President Obama for asking senate Republicans to consider his nomination of Mitch Garland? If you’ve not been sending consistent messages, have you considered that perhaps you’ve played a role in creating the divisions that are laid bare by the passing of RBG?

Prior to 2010, all major US entitlement programs had enjoyed bipartisan support. Obamacare was rammed through in an unprecedent and entirely partisan way. When the liberal state of Massachusetts elected a Republican to replace Senator Kennedy in an effort to prevent the bill passing, did you join the chorus and, to paraphrase the late William F. Buckley, stand athwart history yelling stop? If not, you’re part of the problem, not the solution. The final legislation received no opposition support. Today not only do Republicans still vow to overturn it, but most Democrats want to abandon it for universal health care, including vice presidential nominee Kamala Harris who campaigned on Medicare for All.

When then senate majority leader Harry Reid “went nuclear” in 2013 and eliminated the 60-vote rule on federal judicial appointments (except for the Supreme Court) and executive branch nominations, did you argue that traditions are important and object to his move? When Mitch McConnell said, “You’ll regret this, and you may regret this a lot sooner than you think”, did you tell Democratic leaders that he was right?

It’s ironic that many of those now arguing that precedents and norms should be observed had no objections to the unprecedented treatment of Brett Kavanaugh during his confirmation hearings. They gave Kavanaugh no presumption of innocence when Christine Blasey Ford’s uncorroborated allegations were first tabled and didn’t even feign skepticism when now convicted felon Michael Avenatti brought forward other accusers, all of whom had completely threadbare claims, most of which have since been recanted. Nor did they even blush when senate Democrats put Kavanaugh’s high school yearbook under the microscope.

Undoubtedly Republicans frequently play politics, just as Democrats do. However, they’ve yet to abandon all norms when it comes to Supreme Court nominations. Elena Kagan and Sonia Sotomayor both received respectful hearings and bipartisan confirmation votes; neither were smeared in the manner Democrats treated Robert Bork, Clarence Thomas or Samuel Alito.

If you object to politicians trying to win at all costs, abandoning all norms and precedents, then stop cheering them on and start sending consistent messages. Win people over with your arguments, the way RBG and Antonin Scalia strived to do. Don’t try to rig the rules of the game to your advantage.

It’s disappointing to see calls for the Electoral College to be abandoned again, especially when everyone seems to be arguing about the importance of traditions. The Electoral College prevents regions of the country gaining too much control and tyrannical factions forming. It’s important to note, as Charles Cooke has, that similar approaches are commonplace in most developed countries. Canada, Australia, New Zealand, India, Germany, to name several, all have electoral systems that prevent large geographic regions dominating smaller ones. This is by design in those countries and is commonplace in most advanced democracies, especially ones that inherited English based systems of representation. We would be foolish to abandon it and Democrats, as I wrote in 2016, shouldn’t count on winning under a popular vote system if they aren’t able to come up with a policy agenda with broad appeal.

Another tradition worth hanging on to is a Supreme Court with 9 justices and to that end I agree with this observation:

There is no fixed number in the Constitution, so this court has had as few as five and as many as 10 [justices]. Nine seems to be a good number and it’s been that way for a long time. I have heard that there are some people on the Democratic side who would like to increase the number of judges. I think that was a bad idea when President Franklin Delano Roosevelt tried to pack the court. I am not at all in favor of that solution.

Ruth Bader Ginsburg made these remarks to NPR in 2019. Democrat presidential candidate Joe Biden, who continues to refuse to let voters know whether he supports court packing until after the election, would do well to remember them. It should be an easy no.

A good way to honor RBG’s legacy would be to follow her example in being civil while arguing for the causes we care about, respecting norms and traditions, and calling out politicians that don’t.