‘Should’ Is For Suckers
The age-old distinction between ‘can’ and ‘should’ goes down the drain.
Well, like the rocket ship I once made out of some cardboard boxes, that went nowhere.
David French, Adam White, Ilya Somin, and yours truly all floated roughly the same idea (and George Will seems to be on the same page): That a handful of Republican senators should strike a “Gang of 8”-style deal with a handful of Democratic senators to trade a more deliberate confirmation process in exchange for a vow to oppose court packing and perhaps other power-grabbing ideas popular among Democrats.
The small differences, or even the details, don’t really matter now. The whole concept went down like a dove pinned underneath a lead balloon, hurtling toward earth so fast that no one had the chance to ask how the balloon got up there in the first place.
This is my peeve about the phrase “dropped like a lead balloon”: How did the balloon get aloft enough to drop so dramatically?
And that—with just a bit of stretching—brings me to my chief complaint with some of my critics.
Many seem truly flabbergasted that anyone might bother to float such an idea at all.
Here’s my friend Noah Rothman, for whom I have a great deal of respect and admiration:
“Would it be a display of hard elbows to confirm a new justice this late into a presidential election year? It would. Is it a reckless abuse of power? In no conceivable way. The nation’s founding charter describes the procedural approach to a vacancy on the high court. And for the third time in four years, that process, which is controlled by Republicans, is being adhered to.”
I think this is fairly representative of many of our good faith critics. (I say “our,” but I’m only speaking for myself here.)
So let me start by saying that I think Noah’s position here would be entirely defensible—save for one little phrase. He says “In no conceivable way.”
I don’t think appointing a justice after voting has already begun is anything like an impeachable abuse of power. That’s dumb, and Democrats who spout the idea are making fools of themselves.
But is it really not an abuse of power in any conceivable way? I suppose it depends on what you mean by “abuse of power.”
The word hypocrisy muddies many conversations because we sometimes mistake it for mere inconsistency. And sometimes we use it as a substitute for flat-out lying. What people are calling “hypocrisy” on the part of Lindsey Graham and others is better understood as simple and outright deceit. Or, if you prefer, vow-breaking. Graham claims that the legitimately outrageous behavior of Democrats during the Kavanaugh hearings lets him off the hook for his assurances that he would never support a nomination during an election year, never mind during an election that is already taking place.
(Yes, I’m going to keep pointing this out. Voting has already started in many states. Count down the days to November 3 all you like; as a legal and political matter November 3 is already here and many voters cast ballots not knowing this would be an issue.)
The only problem with this argument: Graham also made these assurances after the Kavanaugh hearings. If all bets were off after that travesty, why repeat the promise—and ask people to hold him to it?
This strikes me as an abuse of power. It’s certainly an abuse of the public trust and public responsibility. And he’s hardly alone in this regard.
Then there’s the actual process: Conducting serious hearings amid the final weeks of a presidential campaign is an abuse of power. The hope and expectation among conservatives is that Trump’s nominee—presumably Amy Coney Barrett—will be the crucial vote for overturning Roe and other long-sought conservative priorities. I share that hope and expectation. But rushing a nominee through the process on a nakedly partisan basis while literally scoffing at all of the norms and precedents you once said were vital to the legitimacy of both the court and the senate is an abuse of power. Maybe it won’t destroy the court’s credibility. But I don’t think any reasonable person can argue it won’t hurt it.
It’s something of a cliché on the right to point out—as I often have—that the Founders didn’t think our system could work without a virtuous citizenry. Less remembered is that the Senate itself was supposed to be the repository of our very best and brightest. John Adams likened it to a “cage” that would bind the natural aristocracy to the cause of the Republic. Who believes that crap now?
The argument in favor of doing whatever you have the power to get away with—now championed by so many of my friends—is the purest form of political pragmatism. Bertrand Russell long ago pointed out the problem with this kind of thinking:
“In the absence of any standard of truth other than success, it seems evident that the familiar methods of the struggle for existence must be applied to the elucidation of difficult questions, and that ironclads and Maxim guns must be the ultimate arbiters of metaphysical truth.”
No one is grabbing ammo quite yet, but in constitutional terms the observation is relevant. If all that matters is power, then prudential arguments are nothing more than spin. If you have the power to do X, you can do X—debates over “should” are for suckers. How will that position help down the road when Democrats try to do everything they can in the face of hollow GOP objections that they “shouldn’t”?
Matthew Franck, writing for The Dispatch, argues that fairness to the nominee should be an overriding concern. How fair is it to the nominee to all but shout, “She’ll be a reliable hack, so we need to get her in there as quickly as possible”?
Neither Franck nor any of my friends are making that argument, of course. But you know who is? Donald Trump and Mike Pence. Pence has already suggested that holding any hearings at all is optional. The important issue is to have a full complement of justices to handle the election litigation. Yesterday, President Trump said that “you need nine justices up there” because mail-in ballots are a “hoax.”
The naked insinuation is that the ninth justice—his appointee—would have his back in this regard. How fair is that to a nominee? How is that argument not even conceivably an abuse of power?
And you know who else will be making that argument? Democrats. The ads write themselves.
I have fewer objections to the practical arguments against making the sort of deal we proposed. Ramesh Ponnuru makes some fine points. And fortunately for me, I don’t have to deal with many of them because the possibility of a deal is gone now that Mitt Romney came out in favor of launching the process.
I don’t really begrudge Romney, by the way, because he has a long record of following his conscience. But the reaction to Romney on the left illuminates the mess we’re in. Romney was the first senator (ever!) to vote to convict an impeached president from his own party and he took incredible amounts of grief for it. For leftists, that’s all down the memory hole because they—like so many on the right—cannot get their heads around the statesmanlike idea of following your conscience even if it conflicts with your partisan priorities or interests.
Which brings me to one practical criticism I think is worth addressing: The main objection to a deal, at least from friends, is that you could never trust the Democrats to honor such a commitment.
However I did not propose making a deal with “The Democrats™.” I suggested a deal among specific senators, some of whom are Democrats and some of whom are Republicans. While I don’t much trust “the Democrats,” (or “the Republicans,” for that matter) I do trust that if, say, Joe Manchin, Kyrsten Sinema, Jon Tester, or Debbie Stabenow publicly vowed not to vote to pack the Supreme Court, they would feel obliged to honor the vow if they wanted to get re-elected down the road. It’s not total confidence or anything; politicians often say things they don’t mean or won’t honor when inconvenient. Just look at Lindsey Graham.
The objection from John Podhoretz and countless others is that there is no legally binding way to hold senators to their promises. I agree! But if we are going to stipulate that the only legitimate constraint on politicians is the strict letter of the law, and it’s naïve folly to suppose other constraints—honor, reputation, whatever—might obtain, then we’re even farther along to maxim guns than people realize. I am wholly open to the possibility that my idea was unrealistic, but I don’t think the folks heaping scorn on the notion realize that their snarking cynicism in this regard isn’t the laughing matter they think it is, but rather is a profound and depressing commentary on how far we’ve fallen.
Still, in my defense, the senators most likely to break their word are also the senators least likely to make the promise in the first place. Such a deal would not be very popular with the Democratic base, never mind Very Online progressive Twitter. But for senators who need moderate, centrist, or even (the dreaded) conservative voters, making such a deal would probably be in their political interest. And if it’s in their political interest to give their word, it’s not outlandish to suppose that it might be in their political interest to keep it.
Indeed, part of my problem with this “you can’t trust the Democrats” formulation is that it assumes all Democrats are either interchangeable and equally venal or that they all follow orders from the Democrat High Command—as if such a thing exists. If the response was, “You can’t trust Chuck Schumer,” or “You can’t trust Harry Reid,” I’d say you’re probably right. But if “Democrat” is instantaneously synonymous with “the villainous oathbreaker” in your eyes, then you’re probably every bit as much of a power-maximizing partisan as the Democrats you have in mind.
I mean, take a moment to think about how Democrats view Republicans right now. They look at Lindsey Graham and many others, and draw the exact same conclusion: You can never trust Republicans. And in all honesty, can you blame them?
Oh, one last point. I think Noah and others make some fine arguments about how it’s silly to negotiate away the bird in the Republicans’ hands for the hypothetical birds in the Democrats’ bush. It would indeed be very difficult for Democrats to actually pack the court or add some extra senators by granting statehood to DC and Puerto Rico. But if that’s true—and I think it is—some of the people tittering at our proposals might also consider the fact that it would also be very difficult for the Democrats to hand the country over to Antifa or usher in socialism or destroy religious liberty, gun rights, and free speech. You can’t simultaneously argue that we’re one election away from giving Democrats unfettered power to fulfill all of their evil wishes and also argue that, for the purposes of greasing the nomination skids, a Democratic victory wouldn’t give them the power to do very much.
And remember: Whatever power they do gain after the election, you’ve already granted that there is no relevant principle militating against whatever it is they could get away with, because you’ve already conceded that “should” is for suckers.
Photograph by Alex Wong/Getty Images.