The Folly of the Universal Negative
I am not an originalist. The Framers were not perfect, and plus, it was their intention that we govern ourselves, that experience and reasoned analysis of current situations and current needs should govern this country. We are meant to benefit from our experience. That said, I don’t entirely disagree with the Framer’s approach to government, especially when it comes to Supreme Court appointments.
Let's be clear on this: it was the clear hope of the framers that we forgo partisanship and instead adopt a much more fine-grained, looser sort of political society. They thought in terms of factions and small interest groups, not huge, dominating parties.
That they did not anticipate those parties is part of a good reason to doubt their infallibility. That said, they were not wrong to hold the notion of parties in contempt to some degree.
It's easy in a party, or any other strong political organization to get so wrapped up in what you think is right that you see nothing else. I don't doubt that Republicans consider their interpretations of the Constitution a product of plain reading. When they tell me that I'm betraying the Constitution , I doubt that I'm doing anything worse, most of the time, than disagreeing with their cherished interpretations.
I think the Framers anticipated that the nation would not be politically united. That's the whole point of all the checks and balances. Not only to impede the parties from getting in power and making everything work to their party's benefit, but also to play those different impulses against each other so that you could filter out the local priorities that only benefit a few from the general priorities that most people want to see handled.
The Constitution is plain about how Justices are to rise to their office:
He[The President] shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Councils, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Advice and Consent, our first President decided, could come before hand, but did not have to. He asserted that he would decide his nominations.
President George Washington was aware that his every action would have significant consequences for the success of the new government and he predicted that the making of appointments would be among his most difficult duties. In selecting nominees, Washington turned to his closest advisers and to members of Congress, but the president resolutely insisted that he alone would be responsible for the final selection. He shared a common view that the Senate's constitutionally mandated "advice" was to come after the nomination was made. (This differed from some existing state constitutional arrangements in which the governor was to seek the advice of his council before making a nomination.)
I don't think they had any notion that two hundred years later, we'd see the Senate insist that a President could not exercise his right, that no nominations would be allowed in front of the Senate.
No matter how you promote this view, it's an unprecedented action, though not unexpected from a man like Mitch McConnell, who for the life of me just can't seem to deal with folks on the other side of the aisle like a grown adult. I don't say that idly. This was the expectation of the Framers.
The Framers were figures of the Enlightenment. They had some elitist tendencies, to be sure, but they believed in the ability of people to reason together, given the chance, to work out differences and not just sulk as individuals when they didn't get what they wanted.
I'm sure there's nothing that conservatives like about the fact that Scalia, their Conservative banner-waver has fallen. I'm sure folks in my camp didn't think much better of the fact that the illustrious Thurgood Marshall, who argued Brown vs. the Board of Education, was replaced by Clarence Thomas, a figure whose silence on the bench has become as famous as his behavior off of it. But those are the breaks.
We haven't left vacancies just to spite the Republican Presidents we didn't like. Anthony Kennedy was confirmed by a Democratic Senate under Reagan. Clarence Thomas, despite his problems, was confirmed. Justice Souter had no trouble. Bush got Roberts and Alito, even if he didn't get Miers.
Any precedent that you could cite to claim that Democrats have denied Republican Presidents the ability to make such appointments runs right into the fact that in many cases, the Republican Presidents got somebody appointed, even if it wasn't always their first choice. Reagan even got a unanimous Senate vote on his guy, Justice Anthony Kennedy, still on the court today.
The Constitutional process isn't always personally gratifying, but the only way really to get a 100% personally gratifying form of government is to have a tyrannical form with yourself or people like you in charge. If you want a truly American form of government, you deal with one that forces compromises between branches, between political factions.
The Republicans have every right to ask for a compromise candidate in return for giving Obama his appointed choice. That's what happened with Kennedy. He's no Scalia, but he still joined the Republicans on many crucial votes. That's the kind of influence the Framers were looking for.
Mitch McConnell seems to be looking for another system to break. I would submit that what he's really breaking is the GOP.
What is my basis for this belief? Well, let's examine his position. Was it to say, "The President can get his choice if he runs it by us first?" No, his position was absolute, black and white. In essence, he said, "Obama, you don't get to replace Scalia."
It's an absolute position, and that's going to bind him. If his position was "we'll look at his candidates, but he's not going to get too liberal of a justice through," he'd have some wiggle room, some ability to say, basically, "This guy's too liberal. Next!" But then say later, if the politics began to force the matter, "I guess we can settle for this guy, he's not too bad."
No, instead, he said Obama wouldn't get anybody. You can't pivot to a confirmation from that without looking like you're going back on your principles! You can't even do it if it's costing your Swing-State Senators their seats, because guess what? If you go back on that, then they get undermined from the other side as the GOPers stay away in droves.
McConnell only really wins if the GOP candidate for President wins, and they keep the Senate. Otherwise, you have varying degrees of failure. A Democratic Senate will, at best, let you have a Kennedy, not a Scalia. A Republican Senate with a Democratic President is going to find itself without any further excuses, especially since the President was going to show up demanding that McConnell be good as his word, an intervening election having decided the Presidency. At best, you get whoever Obama was nominating for the job.
Worst case scenarios? Democratic Candidate wins. Democrats take back the Senate. Their stalling means a far more liberal justice shows up on the bench.
Or worse, you get Obama. Justice Barack H. Obama. President Taft served on the Supreme Court before him, so the move has precedent.
Seriously, I don't want to play Poker with Mitch McConnell at this point, because I would seriously feel guilty playing against a man who calculates his odds and his outcomes so poorly, that the most likely of his outcomes leads to a equal or worse outcome!
You guys wonder why you've lost so many of these confrontations, it's not because your leaders are necessarily weak in any ideological way. It's that your ideology has become addicted to universal statements.
What do I mean? If you grid them out, you got four basic logical categorical statements. Examples:
1) All S is P
2) No S is P
3) Some S is P
4) Some S is not P.
The first two are universals, the second two are particulars. You can look at it like circles in a Venn Diagram. Number one is both circles overlaid completely, Number two is both circles apart. Three and four are overlays, like you're used to seeing with the Venn Diagrams.
In politics, we come to agreements by finding or manufacturing common ground. We either find things we can agree on, or we find reasons to do things we don't agree with so other things we do agree with get done. The Constitution demands all different shades of this kind of cooperation in order for things to get done. If you want to grind things to a halt, you can afford to be an absolutist. But if anything requires more than just your own people in order to get done, if you can't fit the entire decision making process within your nice little circle, you will have to find or coerce common ground with others to move things forward.
I wouldn't be telling anybody news to say that Obama and the GOP in Congress don't agree on a lot of things. But given the fact we're all human here, there are things we can agree on. Not having a spectacular financial and fiscal disaster is one of those things.
The Tea Party, in the past, tried to force the matter by resolutely refusing to agree with anything Democrats proposed, a "separate circles" approach, if you will. But with Democrats either in Control of the Senate and the Presidency, or just the Presidency, they occupied some of the circles that must come together for a bill to become law. No budgets, no deals could be made without including them.
The Republicans created problems to which the Democratic Senate and/or the Democratic President were necessary participants in the solution. If they decided they weren't going to be a party to that solution, then the Republicans couldn't solve the problem they just created. But if they accommodated the Democrats, then the Tea Parties would bail on them.
Or put another way, the two parties in the house become three parties, with the Tea Party dividing off the Republican's strength in one circle, apart from the circle of the GOP Establishment Party. Without the Tea Partiers, the GOP as a whole lacks the majority to pass anything. They might as well be separate parties. When you don't get the need to compromise and make deals, it's easy to sink yourself and your coalitions into no-win situations.
The solution, repeated time and time again, was for the Republicans to recruit Democrats to fill in the missing votes. There really was no other way to avoid the ridiculous consequences of ridiculously absolute hostage situations taken to their logical conclusions. In other words, Democrats and Republicans found a categorical particular in order to satisfy the requirements of the Constitution, and pass the given laws. They found, despite the ambitions of the Tea Party, where their circles overlapped.
It's not irony that this would happen, as it is actually more in line with what the Framers first expected. It is what the rational person would expect to happen most of the time with a mixed government, and with factions gathering into coalitions of greater interest in order to overcome the special interests of a few. Republicans and Democrats joined together in common to avoid some pretty stupid and unwanted outcomes, leaving the absolutists to sulk.
The Republicans underestimated the willingness of Democrats to stick to their guns to get a better deal, a better resolution. They also underestimated the stubbornness of their own.
Let me be blunt here: as much as the Tea Party likes to wave the constitutional banner, it's ambitions are not compatible with the Constitution. The Constitution doesn't let you win for good. It doesn't let you impose religion on people, or support your religion at their expense through the government. It also doesn't let you change things unless you're willing to join in common cause with others.
They can't even cooperate with their own party! If they did, they could easily pass budget deals that bring more conservative outcomes, like the old Republican Congress. That's true enough now, with both houses of Congress back in the GOP's hands.
The GOP fractures because at the end of the day, you can't really turn off a political paradigm largely based on oppositional defiance, of treating every disagreement like a war that has to be won in your favor. It might be invigorating, but it's a stimulant that ultimately leads you to draw your circle closer and closer to oneself. You can be pure, you can lead the consensus, but you can't do both, not without picking those policies that most people can agree on.
At this point, Republicans believe their interests justify crippling the ability of the court to avoid indecisive tie votes. They believe that somehow, the chaos won't be wore than having a liberal slant on the court. Again and again, the Republicans seem to take the approach that if the branch of government is run by the opposition, their politics are somehow pure and good enough to justify trampling the function of that branch to prevent it from governing in a way they don't like.
Does it occur to them that their own ambitions could easily be sabotaged by the same rules, the same procedural tricks and hard-nosed politics? They've already done the job of clearing out many of the centrists and conservative Democrats who would find doing so distasteful. When you burn away your friends in the other party, who do you expect to be left?
The Republicans' problem is that their ambitions for changing the country to their vision of it have become more concentrated as their dogma, their rhetoric, and their partisanship has become more concentrated, too. They've gotten more ambitious, the less they're really able to carry out their plans. When your responsibilities, your real world concerns quit constraining your ambitions, the imagination runs away with itself.
Worse, though, we forget something critical. Thomas Hobbes thought of it, centuries ago, asserting that his second law of nature was
That a man be willing, when others are so too, as far forth as for peace and defense of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself.
Hobbes explanation after this explains something rather simple: if you won't lay down your right to do whatever you want, why should anybody else? If you won't honor the Constitutional imperative that the President appoints a Supreme Court judge during the final year of his term, then be prepared for your Presidents to have to suffer under a similar restriction. Republicans, through their insistence that they have not only the right, but the duty to block anything that doesn't seem right to them have given that same right to Democrats. They're giving license to the angriest and fiercest of Democrats to do the same in return and pit their hardliners against the GOP's.
Is all this necessary? Absolutely not.
We don't need to turn every matter before us into a war. Yes, there will be some strong conflicts, but strong conflicts don't doom us to a lack of resolution. It's closed minds and a lack of faith in the democratic, republican, representative form of government that creates this kind of situation. If your notion is that this country won't be safe or prosperous until the Democrats and Liberals are utterly defeated forever (or Conservatives and Republicans,) then you're missing something critical: Republicans and Democrats alike believe they're right, that their interpretation of the Constitution is the proper one, that they are the good guys. Who could be against them?
If you define everything in terms that exclude yourself from other people's company, then naturally everything becomes a kind of zero-sum conflict. Sometimes our disagreements are strong enough that this is unavoidable. Hence the fifty percent threshold. Nobody expects that people can agree on every issue, and if we waited for more profound agreement, we might not get anything done. Our kind of government is often provisional, often expedient, where we'd prefer it to be principled. But that's the price of getting anything done in a nation where everybody's entitled to their own ideals.
The good thing is, the circles that we fall into aren't merely those of the GOP or the Democratic Party, or any party for that matter. That's just one set of categories we can shuffle ourselves into, one set of criteria by which we can judge the universe. If you're only using the political principles of your party to decide political matters, to deal with the world around you, you're a prisoner in your chosen category, unable to reach out beyond its wall, thin as the whisper of a thought as they may be.
It's benefited some of the GOP's politicians, and the media figures of organizations like FOXNews to make people prisoners of those exclusive circles, but it doesn't help people deal with all the priorities, all the circles of interest that they might fall within. We are more than just Democrats and Republicans, more even than just Conservatives, Independents, and Progressives. We are people who drive to work and vacation on roads, who fly in jets. We are people who have to maintain homes and make livings in communities, who need clean water, pure, effective medicines, and food that isn't rotten or poisoned.
There are many interests we share. One of the interests we share is that the law and its interpretation be clear, so we know how we are expected to behave within our republic. With only Eight Justices, the Supreme Court cannot resolve a dispute between two different circuit courts that disagree on the interpretation of the law. You might not like that a more liberal justice would make these decisions, but expediting the replacement now means that if a similar situation occurs later, with a Republican President in the final year of their term, We can be spared a similar situation, and over the long arc of history, we can be spared long periods of time of uncertain court decisions and unclear law.
I would hope that Republicans realize that a reckless pursuit of their own political goals also gives license to Democrats to do the same, with each side trading injustices until no side, no citizen enjoys the protection of a stable, functional government.
I don't say, "come, let us reason together," because I'm thrilled with the prospect of having to cooperate with Republicans, make deals with them. I say it because however much I value the integrity and purity of my ideas, I recognize that in an imperfect world, the most likely kind of agreement I can hope for, given all the differences I have with other people, is that which is based on what we share, rather than trying to beat others over the head with what we don't.
The world has a way of slapping us upside the head when we put politics ahead of real concerns. I believe Democrats should have helped deal with the moral hazards of the welfare system, instead of just demonizing the opposition. I believe that improvements need to be made on the Affordable Care Act, and the markets it sets up, in order to avoid not merely political embarrassment, but negative outcomes in the real world. I believe Republicans should have given the government the power to bargain prices with the pharmaceutical industry. I believe that Iraq wasn't bad because it was a Neocon enterprise, but because it pursued an illusory problem into a real mess, and then failed to calm the insurgency before it became the massive headache it still remains.
Our politics aren't sufficient to see all ends, our opinions imperfect pronouncements on a world that shows no mercy in upsetting our assumptions. To invest all our efforts in faction and partisanship around these elements is foolhardy. We have to reach out beyond these things, in fact start our assessment of matters outside the circles of our particular parties.
Republicans need to put the stability and the welfare of the republic above their own politics, above their own view of the heroism of the actions. In the real world we can all be our own heroes and each other's villains if we don't watch out, and forget that our interests are often held in common. America needs a full court, a court whose decisions are uniformly decisive. It may not be the majority you like, but it's the one our nation needs.Posted by Stephen Daugherty at February 25, 2016 4:37 PM