Oh, be quiet. So, so many voices right now are talking about a Supreme Court vacancy and whether it will be filled by a liberal or a conservative, a secular personality or a religious believer, a Democrat or a Republican, and all of that is beside the point.
The issue is judicial philosophy, whether the nominee thinks the job is about interpreting the actual words of the Constitution correctly or someone who thinks it is maybe about making some reference to the Constitution but chiefly applying his or her own notions of what the actual principle should be, his or her compassion, his or her moral and societal aspirations, his or her politics. No, we do not want moral cynics making these decisions, but what’s wrong is to resort to self instead of what is spelled out on paper.
Focusing on a reasonable evaluation of the literal intent of the document, what the words mean, what history tells us about arguments of that moment, is called rule of law. Different interpretations are plausible, there are precedents to consider and each case before the court is likely to have its own peculiarities. But the objective should be to understand what the Constitution actually says and to apply it rationally to the case, putting aside one’s own predispositions. The opposite of this is generally to turn to ideology or self-importance, and what you then get is not a court, but an oligarchy.
Obviously, there are nuances in all of this, but it is Congress and state legislatures that are supposed to write the laws, not the court, which should aim at seeing whether they adhere to the Constitution. It is also all kinds of other officials who make all kinds of decisions that the court may also check out through what the Constitution or other laws actually say. When the court steps in without serious reference to the law, there goes the separation of powers, there goes the republic, there goes the consent of the people. Authoritarianism scoots closer.
You hear all kinds of counterarguments backing up decades of transgressions, such as the need to have a living Constitution that adjusts to the times for the sake of vitality. Excuse me, but there is an amendment process, and yes, it is as tough a process as it should be in so crucial an undertaking. To skip it for the sake of personal convictions is akin to disregarding presidential vetoes or the Senate’s advice-and-consent checks on presidential appointees. It is anarchy substituting for responsibility.
Liberals and Democrats can be constitutionalists and conservatives, and Republicans can be the tear-it-up people, but, for the most part, the opposite is true. President Donald Trump has named two men with constitutionalist records to the court and right now, with a sad death and an unexpected vacancy, is pushing for quick, pre-inauguration Senate action validating his new pick. The Democratic pushback is that we may soon have a different president representing the will of the people and should wait for him. The Democrats also point to the hypocrisy of the Republican Senate holding off on an Obama pick because of a presidential election coming up.
The truth is that both sides have indulged in hypocritical chicanery in this business and that the integrity of the Democrats is summed up by their libelous treatment of justice nominee Brett Kavanaugh and their present talk of packing the Supreme Court if they do not get their way. While waiting until after the inauguration would definitely enable a more temperate process, the law in no way prohibits action in the here and now, and relying on lawmakers already chosen for such things might well be a way to help save the court.