An Open Letter to GOP Senators: Let Your Deeds Follow Your Words on Ruth Bader Ginsburg
In the world of Game of Thrones, words are wind, and power is power. But in a democracy, words matter.
Why do people follow laws, and not whatever they want, or whatever the local “big man” tells them? Why, in the United States, can a powerful Senator not order their staff to cut a rival’s throat (or, for that matter, to “stop, I’ve changed my mind, step back three paces, turn around, close your eyes”) and have them obey?
Because in a democracy, we believe in the idea that people do not owe their allegiance to the master they serve. We do not swear oaths of fealty to a lord or lady or party, but swear only to abide by the laws that we as a nation have agreed to live by.
And laws are nothing more than words.
People think of democracy as voting, but it’s really the idea that words have authority over the whims of whoever happens to be in power. We think of laws and institutions as being physical things that exist in reality, but they are really just words: they act as a constraint on power only so long as people believe in them. The only reason the President cannot send people with guns to arrest his enemies is because words on a paper say he cannot — and because the people with guns believe that the words on a paper matter more than the words of a person.
John Adams wrote that we are a “government of laws and not of men.” James Madison (or perhaps Hamilton), writing on the qualifications of Senators, warned in Federalist #62 that the arbitrary changing of precedent “poisons the blessings of liberty itself”:
A continual change even of good measures is inconsistent with every rule of prudence and every prospect of success… In the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly…
The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself… Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
… the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.
These are Biblical ideas as well. James 1:22–24 says, “Do not merely listen to the word, and so deceive yourselves. Do what it says. Anyone who listens to the word but does not do what it says is like someone who looks at his face in a mirror and, after looking at himself, goes away and immediately forgets what he looks like.”
Democracy, in other words, depends on the good faith of those in power to follow the words laid out before them, even when it does not suit their political interest.
At least, these are the stories we have told ourselves up to now. We could always believe in a different story, as Sapiens makes clear.
Human laws are just words on paper, and the idea that they must be followed is just a story — there is no law of nature or physics that guarantees that violating these words leads to inevitable punishment. It is only our belief in the story that words matter which legitimizes the ability of people with the guns to arrest those who disobey these words — and prevents the people with guns from obeying an order from a Cersei Lannister.
If people are not bound by words — if people stop believing in the story that words should constrain the actions of those in power — then tyranny is around the corner.
The Rule of Law is not the only story we can believe in. It’s not the story most people believed in for most of human history, when Europeans swore oaths of fealty to feudal lords, and fought and died defending those oaths. And it’s not the story adhered to in many countries in Africa, where I’ve served for the last nine years, or in much of Eastern Europe, the Middle East, or Central Asia. In many of these places (as a gross generalization of course), the story is not about following the law, but obeying the Boss — the “Big Man.” When election time rolls around, candidates for the ruling party go round handing out sacks of cash, opposition candidates are arrested, and the smell of tear gas fills the air. Presidents often arrive in power making grand promises of democracy and freedom. They utter words verbally promising not to cling to power, and write words in paper constitutions describing term limits.
But when these terms are up, it turns out that words are wind, and power is power. The words change, and the leaders don’t.
With the death of Supreme Court Justice Ruth Bader Ginsberg, the United States faces a reckoning over what story we believe in. Republican Senators in particular, who uttered words on record that a Supreme Court Justice should not be confirmed in an election year, face a choice: do words, traditions, and precedent matter? Or only the naked pursuit of power.
In 2016, Sen. Lindsey Graham (R-SC) stated on the Senate floor, “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say, ‘Lindsey Graham said, “Let’s let the next president, whoever it might be, make that nomination,”’ and you could use my words against me, and you’d be absolutely right.”
He repeated in 2018, “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election.”
Sen. Mitch McConnell stated, “the nomination should be made by the president the people elect in the election that’s underway right now. I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president.”
Sen. Chuck Grassley (R-IA) said as recently as August 2020 that he “couldn’t move forward with” filling an empty Supreme Court seat.
Senators Lisa Murkowski (R-AK) and Susan Collins (R-ME) have both stated their opposition to filling a seat this year, with Murkowski calling it a “double standard.”
If a Senator can say one thing when their party is not in power — to the extent of saying “use my words against me” — and then another when their party is in power, then the rule of law is meaningless, and the United States has become Westeros, medieval Europe, or an African/Eastern European/Central Asian nation of Big Man rule.
I am afraid. Not just as a Democrat afraid of a conservative court, but afraid for what Republicans’ violation of a precedent they themselves created — and Democrats’ inevitable retaliation as soon as they are in power — could do to the rules, norms, and institutions underpinning the Rule of Law in our country.
We can debate over who “started” this fight. Democrats blocked the nomination of Robert Bork in 1987, and in 2006 then-Sen. Barack Obama voted to filibuster Samuel Alito’s nomination by President Bush (a decision Obama later said he regrets). In 1992, none other than then-Sen. Joe Biden urged President George H.W. Bush to avoid hypothetical Supreme Court nominations in that election year. (Of course, urging against a hypothetical nomination is a world of difference from blocking an actual one, and Biden has stated that he would have held hearings had a nomination come up). On the other side, Republicans’ refusal to hold hearings on Merrick Garland’s nomination was “unprecedented” according to the American Bar Association: not since 1866 — the year after the Civil War — had the Senate refused to hold a hearing on a President’s Supreme Court nominee.
Whoever started this fight, there’s no question that Republicans violating their own precedent against filling an empty seat 44 days before an election would be a contentious escalation — one that Democrats, if they take control of the Senate and Presidency in November, would surely be tempted to further escalate. Already there are calls from activists on the left to “pack the court” with new seats if Biden were to win. And if that happens, what does the Supreme Court become? No longer the respected institution guarding the rule of law, but just another election year war of scorched earth.
Institutions are just words, and they stop existing as soon as we stop believing in them. And I’m afraid that the latest battle over the court will turn into a War of the Seven Kings.
I don’t want such a war: only de-escalation and “turning the other cheek” can break a cycle of retaliation. I also don’t want to “pack the courts”: walling off certain institutions from politics is fundamental to democracy, and I would hate for Democrats to have to take such a step. And if Democrats lose in November, this is a moot point: Trump will have every right to choose RBG’s successor.
But if Republican Senators made such a blatant power play, disregarding their own precedent, there would be little choice. They had better remember that power changes hands in our country, and that at some point, the Democrats will be able to do the same thing back to them.
So do they want to continue the cycle and give Democrats an excuse to pack the courts? Or do they want to remain true to their own words, norms, and traditions?
James Madison warned against “faction.” Jesus Christ warned against hypocrisy more than 25 times. Ruth Bader Ginsburg’s dying wish was that her replacement wait until after the election. It’s not just the Supreme Court. Nothing less than the Rule of Law — the idea that the words we agree as a society to live by are more important than the naked pursuit of power — is what’s at stake.
I’ll close with the words of Sen. Graham, spoken on the floor of the United States Senate in 2016:
The moral high ground is a shaky place to be in the Senate when it comes to judges, so I won’t go there.
I will say, if you live long enough, it’s fascinating, a long life allows you to be lectured to about judges by people who have been exceedingly unfair, and I like you all very much, and I want to work with you where I can, but the Senate’s evolving in a very bad way. We don’t need to go back to the Civil War to find out where we’re headed. We’re headed to changing the rules, probably in a permanent fashion.
When President Bush’s nominees were filibustered en masse, there was a temptation on our side to do the nuclear option. I was one of the Gang of 14 that said, “Let’s not go down that road.” Seven Democrats, seven Republicans — only three of us are left, and we found a way to confirm most of President Bush’s nominations. He lost a handful.
I got the crap beat out of me at home, and when I told people I just thought that consequences come with elections, “We don’t want to change the 60-vote rule because you may need it one day yourself.” Nobody wanted to hear that until we lost, and the very same people are beating the crap out of me now because I would sometimes work with the other side.
Here’s what’s going to happen: In the unlikely event that we lose the White House, which I know is hard to believe given the dynamic of the Republican Party now. But, just in case we lose, and I know that seems almost impossible to imagine, Hillary Clinton is going to be president — unless Bernie [Sanders] keeps doing well, and something happens I don’t know about.
Let’s just assume for a moment she is president. I’m telling everybody on my side, she’s going to pick somebody probably more liberal than President Obama’s going to send over in a few days — and I’m going to vote for that person if I think they’re qualified. I voted for [Sonia] Sotomayor and [Elena] Kagan, not because I would have picked ’em, but because I thought the president of the United States deserves the right to pick judges of their philosophy and that goes with winning the White House.
Why do I feel comfortable doing this? The history of the Senate is pretty clear here. The current vice president, in 1992, argued for what we’re doing. The sitting president of the United States filibustered two Republican Supreme Court justices. So, when he called me, I said, “Is this the same guy that filibustered [Samuel] Alito and [John] Roberts? So, you’re asking me to do something you couldn’t do yourself, which is, in your view, to be fair. I never thought you were fair to our judges, but it’s not about me paying you back. It’s trying to have some process I think will stand the test of time.”
This will stand the test of time. This is the last year of a lame-duck president.
If Ted Cruz or Donald Trump get to be president — they’ve all asked us not to confirm or take up a selection by President Obama — if a vacancy occurs in their last year of their first term, guess what? You will use their words against them.
I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say, “Lindsey Graham said, ‘Let’s let the next president, whoever it might be, make that nomination,’” and you could use my words against me, and you’d be absolutely right.
We’re setting a precedent here today, the Republicans are, that in the last year — at least of a lame-duck, eight-year term, I would say it’s going to be a four-year term — that you’re not going to fill a vacancy on the Supreme Court, based on what we’re doing here today.
That’s going to be the new rule.
When y’all changed the rules about appellate judges and district court judges to get your way, I thought it was really an abuse of power. And what you have done here is you’ve made the caucuses — the Republican and Democratic caucuses — are now not going to have to reach across the aisle when it comes to appellate judges and district court judges to get input from us or we get input from you.
So, what does that mean? We’re going to pick the most hard-ass people that we can find. And dare somebody in the conference to vote against that person. You’re going to have the most liberal members of your caucus pushing you to pick the most liberal judges cause you don’t need to have to reach across the aisle to get any of our input — and we’ll do the same.
So, over time, the judiciary is going to be more ideologically driven because the process in the Senate now does not require you to get outside your own party.
So, I’ll be fighting talk radio when somebody on my side puts up a nutjob — and they will. And, I’ll fight if I think they’re truly a nutjob. And it’s going to happen on your side, too.
So, this is where we find ourselves. I’m saddened by the fact that the Senate has gone down the road we’ve gone. I’m very much supportive of what you’re doing Mr. Chairman. I don’t think you’re doing anything wrong, but I just want the members on this side to know that if we lose this election, my view of what the president to come will be able to do is the same.
If it is Hillary Clinton or Bernie Sanders, and they send over a qualified nominee, I am going to vote for them in this committee and on the floor, because I think that’s what the Constitution envisioned by advise and consent. There is no roadmap in the Constitution of what to do, when to do it.
The Senate has always done what it thought was best at the time it was in. At the time we’re in, what’s best seems to be to play politics with judges — pretty much on both sides.
But, y’all started a new game when you changed the rules. There’ll come a day when you have a Republican or Democratic president with a Republican or Democratic Senate, and they’re going to change the rules on the Supreme Court. And it’ll get frustrating.
So, it’s just a matter of time before the Senate becomes the House, when it comes to judges, and I really hate that.
Thank you very much.
This post originally appeared in Afrikent
