Picking a court justice without hardball tactics

During the making of the U.S. Constitution, James Madison warned against “the superior force of an interested and overbearing majority.” Centuries later, when Ruth Bader Ginsburg was asked what she saw as threats to the rule of law, she replied, “The problems of indifference, of tribal-like loyalties, lack of observance of the golden rule, ‘Do unto others.’”

These sentiments now seem lost as Senate Republicans and Democrats fight over how to fill the Supreme Court seat left vacant by Justice Ginsburg’s death. Rather than deliberate across party lines – in the spirit of “advice and consent” that the Constitution demands – the senators seem “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens,” as Madison warned.

Power dynamics may be part of how the Senate normally operates. Yet for decades that was not always the case for judicial appointments. Courts, by their inherent appeal to higher law, require elected leaders to also act out of principle in picking judges.

Now, with Republicans controlling both the Senate and White House and Democrats assuming they will gain majority rule after the election, each side is claiming the other is ignoring thei party’s interests or making moves that set dangerous precedents.

This runs against not only Madison’s advice but also Justice Ginsburg’s view of how public officials should get along. She understood that the norms of noble governance – civility, comity, and tradition – are enduring only to the extent that officials practice them. “I am hopeful,” she stated, “that people of goodwill in both of our parties will say, ‘We have had enough of dysfunction. Let’s work together for the good of all people who compose the nation.’”

Many provisions in the Constitution were designed to forge deliberation and consensus. If Republicans and Democrats want to honor that founding document, they should look for procedures and practices that calm the fears of Americans during a time of deep polarization and a pandemic.

They could look to the example of humble listening in the friendship between Justice Ginsburg and the late Justice Antonin Scalia. Each was a champion of a particular judicial perspective yet they had a profound respect for each other’s intellect, setting an example of deliberation.

Speaking in tribute to Justice Scalia after his 2016 death, Justice Ginsburg noted the value of their legal disagreements: “When I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots – the ‘applesauce’ and ‘argle bargle’ – and gave me just what I needed to strengthen the majority opinion.” She also endorsed a warning by former Chief Justice William Rehnquist that judges should act as referees and not cast their decisions to favor “the home court crowd.”

Representative democracy is not just a matter of determining a majority’s interests and then acting on them. Madison also expected governing bodies to refine the views of voters and achieve “the cool and deliberate sense of the community.” Wisdom and virtue are brought to light through reason and listening. Such a commitment to high-minded principles and fairness would provide a healing standard now as America finds itself at a critical turn.