By now it should be clear that Justice Ruth Bader Ginsburg was much more than a justice on the United States Supreme Court. She was also one of the most influential civil rights lawyers in American history, an expert on civil procedure, an exceptional human being, a pop culture icon, and a hero to many. Like her predecessors Justices Louis Brandeis, Thurgood Marshall, and Sandra Day O'Connor, Justice Ginsburg changed the world both on and off the Court. Her majority opinion in the 7-1 U.S. v. Virginia decision striking down the Virginia Military Institute’s male-students-only policy deserves its place among the most consequential SCOTUS rulings ever. Following the decision (and the line of cases before it), the Equal Protection Clause of the U.S. Constitution finally had real teeth when it came to gender discrimination. I did not agree with all of her decisions (note: I do not agree with all of any justice’s decisions), but, without question, she made America a better place for all, especially for my two young daughters.
It would be nice if we had proper time to mourn her passing and our loss. But politics rests for nobody. How to fill Justice Ginsburg’s large shoes is already a major part of the 2020 political conversation. It should be. Candidates must make their case, and voters must vote their conscience. President Trump should also feel free to make his nomination, putting the specific question directly before the American people. But the Senate should not vote on that nomination until after the election.
Before making my case, I want to be clear about what I am not arguing.
First, my reason for believing the Senate should wait to vote is not because I don’t like any of the possible replacements. (I am a former Republican who did not vote for President Trump in 2016. I don’t intend to vote for him this election either.) Policy-wise, I do not hold fast to all conservative positions. But I still firmly believe in the conservative legal philosophy and mantra that our unelected federal judges should stay in their lane, and exercise the restraint required by written law. From what I know about the three individuals getting the most current attention — Judge Amy Coney Barrett, Judge Barbara Lagoa, and Kate Todd — they all could make excellent additions to the Supreme Court.
Second, while I completely understand Democrats’ justified outrage, I do not believe Republicans “stole” a Supreme Court seat in 2016 when they rejected Judge Merrick Garland’s nomination. Nobody is entitled to sit on the court unless a majority of senators agree, and no senator is ever obligated to vote yes. That said, Judge Garland was an exceptional nominee, and he should have received a fair hearing and a vote. All judicial nominees deserve the same. Former Majority Leader and Nevada Sen. Harry Reid was right to start abolishing the filibuster for judicial nominees.
Third, other than illustrating the realities of government separated by party and branch, Senator McConnell did not set any real precedent in 2016 that must apply today. Then and now, he has operated within the constitution’s broad boundaries. When the president and the Senate majority share the same party, confirmations usually occur. Voters can decide whether any hypocrisies exist.
Finally, I am not convinced that Democrats would have acted much differently than Republicans during this whole sad affair.
Why, then, should Republican senators hold off on a vote?
My concerns are far broader and far more institutional than any one court opening or any nominally political question. We are at a breaking point. We already hate each other enough, and I do not know if we are built to survive the strain of a confirmation fight on top of the multitude of challenges we currently face — and in the midst of an election process that more and more people distrust. What’s more, the ever-escalating fight over the judiciary simply cannot go on forever if we are to have any faith that our courts are something more than political machines. Like our faith in paper money, once lost, our faith in the courts could be lost for good.
If Republicans make the appointment before the election, Democrats have threatened, among other things, to eliminate the legislative filibuster and expand the court (maybe all courts) as soon as they regain power. Of course, many Democrats had already threatened to do that prior to Justice Ginsburg’s passing, but given Vice President Biden’s lack of enthusiasm for the expansion idea, its prospects were uncertain. All bets are off, though, if Republicans confirm the nominee and Democrats win the election. You reap what you sow.
A handful of Republican and Democratic senators, and potentially Vice President Biden, now have a chance to do something relatively novel in our partisan universe: relieve tensions. Republicans can agree to postpone the vote on Justice Ginsburg’s replacement in exchange for Democrats agreeing not to eliminate the legislative filibuster (which Democrats have recently used on two occasions) and pack the courts if they win in November. The details of the deal would need to be worked out, but the fundamentals are simple, and both sides would give up something valuable.
During the Cold War, American foreign policy too often equated compromise with appeasement. And appeasement was the gravest sin. Appeasement in Munich empowered Hitler and led to war. Such thinking nearly resulted in nuclear holocaust during the 1962 Cuban Missile Crisis. Rational, intelligent, well-meaning people actually thought, if just for a moment, that ending the world was preferable to backing down an inch. Fortunately, cooler heads prevailed, and the United States and the Soviet Union stepped back from disaster with literal guns still pointed at each other’s heads.
Republicans in the Senate should take the first step towards de-escalation. Fair or not, future chaos, disunion, and the potential destruction of the Supreme Court as an institution (and its current conservative majority) is not worth the chance to have just one more judicial vote on a handful of contested cases.
Could either side go back on its word even after making a deal? Sure. But we have to start somewhere. And while partisan brinkmanship may make short-term political sense, our country is bigger and better than raw partisan warfare. It has to be. Tying the success of our nation to the success of any one party is both stupid and dangerous. Exercising power just because you can, and because you are counting on your partisan rivals to do likewise will eventually hollow-out representative democracy.
Good government may make for good politics, as well. I worked up close with former Gov. Brian Sandoval, who often put partisan politics aside when convinced of a better course. Agree with him or not, he always tried to put Nevada first. The idea of doing something he did not like for partisan reasons alone (or just because he could) was abhorrent to him. He compromised. He self-governed. At times, he told his political allies no and his political adversaries yes. And guess what? His apolitical stance was also incredibly politically popular.
I get that moderation and compromise are not en vogue right now. Nor are they always the right way to go. Truth exists. So does right and wrong. Some evil must unconditionally surrender. But we all exaggerate our abilities to never be in error, and party labels in a two-party system are poor aggregates of righteousness. Unless we have completely abandoned the idea of living in a country with people we disagree with or even despise, there must be a place for reasoned and reasonable negotiation. 2020 has been horrendous. Maybe out of the horror we can find a way back from the ledge.
Daniel H. Stewart is a fifth-generation Nevadan and a partner with Hutchison & Steffen. He was Gov. Brian Sandoval’s general counsel and has represented various GOP elected officials and groups. He recently switched his registration to nonpartisan.