The Nihilist Republicans and Political Bigotry

By David K. Shipler

            Senate Republicans’ pledge to reject President Obama’s Supreme Court nominee who hasn’t been named contains as much intellectual integrity as trying to ban a book you haven’t read. It further politicizes an institution that works properly only above politics, when justices examine the law and the Constitution without regard to their personal preferences. And it could paralyze the Court on key cases, producing 4-4 ties that would let stand lower appeals court rulings but would set no nationwide precedents on matters that cry out for clear resolution.

The ironic fact that this would promote government’s dysfunction and further reduce its stature does not help so-called “establishment” Republicans who are worried about the protest vote being mobilized by Donald Trump and Ted Cruz. Those voters have been energized by the disdain for government, encouraged by the Tea Party movement and other radicals who could be called the Nihilist Republicans, as distinguished from the Responsible Republicans who used to try to govern when they won elections.

Justice Antonin Scalia’s body wasn’t even cold before Nihilist Republicans voiced their political prejudice by stereotyping as leftwing any conceivable candidate who could be proposed by Obama. This is the classic dynamic of bigotry: reject an individual—even an unidentified individual—because of his or her membership in a group. Reject because of the origin. Reject because of who supports the person. It is the same deviant logic that Trump uses to oppose letting Muslims into the country.

In a society that supposedly values individualism over collectivism, judging people by their collective associations rather than by their individual traits violates a basic American ethic—at least one we wish to see practiced.
That the Nihilist Republicans have now applied this stereotyping to a yet-to-be-proposed nominee for the highest court is in keeping with their effort to foil whatever Obama proposes, no matter how beneficial for the country. It is consistent with the statement after Obama’s election by Sen. Mitch McConnell, now Majority Leader, that his top priority would be to see Obama defeated the next time around.

Democrats are capable of knee-jerk politics, too, but they have generally held Supreme Court nominees to more elevated standards, not to political tests. If they had behaved the way Nihilistic Republicans do, Scalia would never have reached the bench; he was confirmed 98-0. Even Clarence Thomas was narrowly approved by a Democratic-led Senate after Anita Hill accused him of sexual harassment. With occasional exceptions, Senators from both parties once tended to defer to a president’s choice unless they found the nominee supremely unqualified.  

The approach produced some notable justices who matured and evolved on the bench, saw the big picture, rose to the awesome responsibility of interpreting the Constitution, and transcended whatever partisan milieu had generated their nominations. Hugo Black belonged briefly to the Ku Klux Klan in the 1920s but in 1954 joined the unanimous Court overturning school segregation in Brown v. Board of Education. David Souter and John Paul Stevens, both nominated by Republican presidents, developed views usually regarded as liberal. And while both Anthony Kennedy and Stephen Breyer, named by a Republican and a Democrat, respectively, can usually be found with conservative and liberal colleagues, respectively, they have also defied clear labels in important cases.

That is how it should be. Some judges have an expression to describe an opinion they would like to issue but simply cannot because it is not justified by the law. They sit down to work it out but can’t muster the legal reasoning. “It won’t write,” they say of such an opinion. Even Scalia, whose polemical opinions made for colorful reading, said in a 2009 C-Span interview, “Very often, if you’re a good judge, you don’t really like the result you’re reaching.”

Nevertheless, it’s hard to escape the impression, reading some opinions, that certain judges begin where they want to end and work backwards to arrange the arguments accordingly. The more politicized the selection process for the judiciary, the more likely this is to occur.

Now would be a perfect occasion, in replacing Scalia, to set in motion an intellectual process to depoliticize the Supreme Court. Republicans claim that since Obama has only 11 months left in office (nearly one-quarter of his term), he should hold back in this election year and let the next president make the nomination. But who believes that the Nihilists would have approved an Obama nominee even if it had come a year ago? Who thinks that in the face of today’s vitriolic polarization and the unyielding group indictments, the few remaining Responsible Republicans would have the courage to stand up to their Nihilist colleagues?

Why not seek a consensus candidate, one with impeccable credentials, an esteemed legal mind, and a deep reverence for the durability of the Constitution’s principles? Why not eschew the liberal and conservative labels and seek a transcendent thinker? Why not find someone who can be depended upon, not to remain fixed in a parochial posture but to change, to grow, to learn? If Obama nominated such a person, and if Senate Republicans had held their fire and demanded it of the president, the Supreme Court and the country would be set on a better path.

Sadly, this is a dream, and a vote for president in November will be a vote for the direction of the Court. Let’s hope that enough voters care.