September 20th, 2020


the politics of death

... particularly when the one doing the dying is a SCOTUS justice. Because I've been thinking.

First, I'm not surprised or even particularly dismayed that politicos are already talking about her replacement. Yes, Fox commentators are floating specific names, and yes, Sen. Turtle (R-KY) has confirmed he'll hold a vote on any nominees, but Democrats are also milking this for massive amounts of donations. This is not just a personal tragedy, both for those who knew the woman and those who are mourning what she symbolized in our own lives; it's a genuine political moment with public importance. Of course people are going to discuss those aspects.

I do wish we could put a pause button on those vital public conversations when it involves death, though. Pause the news cycle. Then when the nation has had a time to grieve, then we can discuss the political implications as fresh news. It would be a lot more humanizing and humane, though I'm not sure how you'd do it since everyone would have to agree to press pause together.

Democrats are talking a lot about the hypocrisy of Republicans, particularly the aforementioned Sen. Turtle, because when Scalia died back in 2016 there was such a pushback to even giving a hearing to Pres. Obama's nominee. And there is such a hypocrisy here, and it does need to be discussed. The problem is the way the Democrats are doing this is forcing them to be hypocrites themselves. It's one thing to say: hold on, you've completely switched sides in a brazenly political move. You can even do that in a way that doesn't give up the argument this go-round; for instance, you could argue that because mcConnell basically stole Obama's chance to have his nominee vetted, in this one instance and in the interest of fairness they should delay the vote until after the election voluntarily; or even give Merrick Garland a hearing for this nomination. Even if Congress resoundingly rejected him, they'd have to do it on the record, and it would be a good symbolic move toward acknowledging he'd been wronged back in 2016.

As it is, by insisting we delay a vote, they're really being just as hypocritical as the Republicans. I don't think they shouldn't fight, and I do understand the stakes! I'm all for anything that keeps trump from appointing another SCOTUS justice. But I still cringe every time I see Dems using the Rep playbook and buying into it just to use it against them.

But none of this would address the big issue, which is that there's such a perverse incentive to game the nomination process on both sides. Justices either serve until they die or try to hang on until a president of similar politics can appoint a like-minded replacement. Justice Ginsburg was dying of cancer. She shouldn't have had to served at the same time; certainly if someone had a slowly-deteriorating mental condition, like Alzheimers or just old-age dementia, they shouldn't be serving until they died. But on the other side, conservative commentators are talking about potential justice nominations from just two angles: have they proved they're reliably conservative, and are they young enough to be expected to serve for decades to come?

To be fair, in the opposite situation I'm sure there would be liberal/progressive commentators and politicians pushing for the exact same qualifications. I hope I'd be just as opposed to that as I am this. Firstly because justices are supposed to be qualified for something beyond their political leanings. Not to say they don't have biases and starting points that might generally make them more sympathetic to certain ways of thinking about politics, but "reliably conservative" is a big warning sign to me that a person is too nakedly political in their thinking to give a case the unbiased hearing that justice requires. And second, the age thing! I understand why, but jeez! That's just so depressing and obviously gaming of the system, but it also only seems to happen because the system is so easily game-able.

The obvious answer is to stop lifetime appointments and either appoint people for set terms or even elect them. I'm not a big fan of either because I think giving justices the security to make unpopular rulings is important. Can you imagine Justice Kennedy deciding Obergefell the way he did if he was facing re-election? And if the current president got to to appoint justices every ten years instead of whenever they die, it would only create more of a problem, not less.

One approach might be to set up a kind of judicial executor for SCOTUS justices) - in the sense of executor of a will, not a literal killer! Say Justice Ginsburg had chosen someone who when she retired or died would nominate the next candidates. Presumably this wouldn't be a politician who had their own partisan agenda in getting a SCOTUS justice on the bench with a certain base-pleasing ideology. Congress would still have to approve meaning it wouldn't be like some random person just selected the next justice; but they would have to hold a hearing and go on the record with why they think the person is unsuitable, and if they just reflexively refused to approve one nominee after another you'd hope there'd be political consequences.

The benefit? It would let justices have some control over their successors, so they could retire in good conscience knowing someone with a similar view of the law would go on advocating for their legal philosophy. There's be less drive to nominate justices just because they're young, and less reducing them to a particular political party. We couldn't say oh this justice is a Bush appointee or a Clinton appointee, when we're analyzing and predicting SCOTUS decisions you'd have to look more at the variety of their actual opinions. And because the judicial executor presumably wouldn't be a politician themselves, there'd be a lot less need to satisfy the base feeding into the nomination process.

Of course, it would also mean a lot more balance in the ideological makeup of the court, and as a progressive that's not exactly a happy thought. But it's not like we'd be cloning the current justices. Their executor would be someone they trusted with this, but not exactly them. There's also the fact that Congress's makeup affects who could actually get approved. So if Ginsburg had retired and a legal colleague who she thought would pick someone with a similar philosophy had been tasked with nominating her replacement, a more moderate candidate would probably be more likely to get through; whereas if it was under a more liberal Congress she might select someone with more liberal-friendly philosophies and history.

I don't know. Practically it's probably never going to happen. But the more I think about it, the more this feels akin to the Electoral College: long outlived its usefulness, totally out of kilter with the current political reality, and just something that needs to be changed.