The Supreme Thing

America is caught in an ethical debate. Do the Republican Senate majority have the moral right to approve a new Supreme Court Justice to replace Ruth Bader Ginsberg so close to an election—something they refused to do for Obama in 2016?

If they do it, Democrats are charging hypocrisy.

Is the situation now different from 2016? It is, in several ways. First, in 2016, Obama was in his final term. No matter what happened, there was going to be a new president. This time, there is only a 50% chance. Second, in 2016 the Senate and White House were held by different parties. If the Senate has the right to refuse to appoint, does it follow that they have a duty not to appoint? They have a right to pass a law against jaywalking; not an obligation to pass a law against jaywalking.

Are these differences significant?

Suppose they aren’t. Even so, it looks like a wash: then the Republicans are doing the opposite of what they did in 2016, but the Democrats are demanding the opposite of what they demanded in 2016. Everybody’s equally a hypocrite, then.

Two wrongs, you might respond, never make a right. If Democrats are hypocrites, that does not give the Republicans the right to be hypocrites too.

Yet there are cases in which two wrongs do make a right. You pick my pocket, then I pick yours in turn, and get my wallet back. If the Holy Roman Empire invades, France has not only a right, but a duty, to defend. Even though war is a wrong, and killing people is a wrong. If the French win the war, right is restored. Sending a criminal to jail is another example of two wrongs making a right: it is, in itself, a wrong to restrict someone’s liberty.

In this case too, one side may be in the wrong, and the other side merely playing defense.

Appointing a Supreme Court judge used to be a bipartisan affair, with the Senate assuming the president had a right to appoint his preference, and looking only at their legal qualifications. The Democrats ended that in 1987, in refusing to ratify Robert Bork because they thought he would vote against Roe v. Wade. In 2013, to get the candidates they preferred on the bench, the Democrats used their Senate majority to end the right to filibuster judicial appointments. That ended any need for bipartisanship, and made it a strictly partisan process.

Moreover, their basic premise in approving judicial appointments has long been to install justices who intend themselves to break the rules: justices who will not simply interpret the constitution, but who will impose a political agenda. Had they not done so, judicial appointments would not matter politically: to the point at which, now, the appointment of the right judges seems to have become the Senate’s main job.

In such a situation, it is just stupidity, or moral cowardice, for Republicans to refuse to defend their interests. It is like refusing to take up arms when invaded.

They must act swiftly on a new appointment; for the good of the country. The Democrats have been tinkering with the election rules as well. They have introduced large-scale mail-in voting for this election. The system is untried; it is likely that there will be legal challenges. Unless there is a decisive win, it is going to be a mess. Such challenges will go to the Supreme Court, as they did in 2000. With only eight justices, it is theoretically possible that the court could split 8 to 8, and be unable to resolve the matter.

The civil war that might result would not be pretty.