In his account of why people, and nations, lie about their conduct in war, the political philosopher Michael Walzer observed: “Wherever we find hypocrisy, we also find moral knowledge.” The hypocrite appreciates as well as anyone that there is “a way of talking about wars and battles that the rest of us appreciate as morally appropriate.”
As in war, so too in politics. Tomorrow marks the start of Judge Amy Coney Barrett’s confirmation hearing before the Senate Judiciary Committee, and the coming fulfillment of the promise Senate Majority Leader Mitch McConnell made within hours of Justice Ruth Bader Ginsburg’s death, 47 days before the presidential election. McConnell vowed that President Donald Trump’s replacement nominee would get a vote on the Senate floor—and also took care to insist that this was totally consistent with his refusal to allow President Barack Obama to fill the vacancy created by Justice Antonin Scalia’s unexpected death almost nine months before the 2016 election. Although “since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year,” McConnell claimed, no such tradition existed when the Senate and the president were of the same party. Days later, Senator Mitt Romney ended all speculation that conscientious Republicans would stop the party from moving forward when he released a written statement that adopted McConnell’s reasoning: “The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own.”
Critics quickly rejected this revisionist account as factually inaccurate—as explained by Russell Wheeler of the Brookings Institution, eight of nine election-year vacancies in the post–Civil War period were filled in the same year, including the most recent divided-government vacancy filled by Justice Anthony Kennedy by a unanimous 97–0 vote. (The ninth was filled through Republican President Dwight D. Eisenhower’s uncontested recess appointment of Justice William Brennan, who was confirmed by a Democrat-controlled Senate the following year.) And Senate Republicans’ ad-lib is at odds with the party’s own stated justification in 2016 for declining to give Judge Merrick Garland a hearing, which was that, when a vacancy occurs close to an election, “the American people should have a voice in the selection of their next Supreme Court Justice.” But there is a more fundamental problem with the Senate Republicans’ invocation of precedent (the word appears three times in Romney’s brief statement) to construct a morally appropriate story for their hypocrisy. It is their disregard for what precedent means and why it even matters.
In American courts, precedents are judicial decisions that bind decision makers in similar future cases or—if the facts are different enough, or if a Minnesota court is deciding how to rule in a case that looks a lot like a case already decided in Iowa, for example—may serve as persuasive authority. The Senate, too, generates an enormous body of its own precedents that are formally created when the Senate votes on an issue or takes an appeal from a decision made by the presiding officer; in a 1978 oral-history interview, the legendary former Senate Parliamentarian Floyd Riddick explained that most points of order raised in the Senate in the course of its highly stylized proceedings fall into the “gaps” between rules and therefore “involve precedents as opposed to the specific rules themselves.”
In the struggle over Ginsburg’s seat, neither party is using precedent in any formal sense. But McConnell, a lawyer, has repeatedly invoked the term for a reason. He tweeted on Tuesday, September 22: “Our Senate majority will do exactly the same thing in 2020 that we did in 2016: Follow Senate history, follow the clear precedent in each situation, and do exactly the job we were elected to do.” He tweeted it again the following Thursday: “The Senate will do what we did in 2016: Follow history, follow precedent, and do the job we were elected to do.” The strategy is clear: to justify his selective exploitation of the constitutional gap between the president’s nomination of a justice and the Senate’s provision of the “advice and consent” required for confirmation—a gap that is silent on when the Senate must proceed with its part—McConnell is laying claim to precedent as a talisman of fair play and the rule of law.
The Senate is admittedly a political body, not a court. But this effort to redefine precedent to legitimate political whim on an issue of such constitutional magnitude is conceptually incoherent. In a 1986 decision, the Supreme Court explained that the “principled and intelligible” development of the law through adherence to precedent “permits society to presume that bedrock principles are founded in the law, rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact.” The Court’s account of the purpose of precedent makes clear not just the definitional absurdity but the double harm that comes from interpreting a major precedent so that its application hinges on the politics of the decision maker: It undermines the fairness of the system, and just as importantly, the legitimacy of the institutions entrusted with administering that system.
As Barrett herself explained in a 2013 law-review article, in a world where all decisions boil down to politics, “there is no reason why the precedent—itself thus tainted—is worthy of deference.” To go one step further, there is no reason to think an institution that systematically disregards its own precedents or fabricates them to exploit political opportunity—be it the Senate or the Supreme Court—would be considered worthy of respect, either.
Crucially, political legitimacy requires bipartisan stewardship of the norms that grow in the spaces between laws and rules, but now precedent is being invoked to justify abandonment of those norms. The very idea of precedent is being politicized in service of the further politicization of the Supreme Court, “both in appearance and in fact.”
Nothing could be more emblematic of this historical moment than this abuse of so-called precedent to secure the conservative trajectory of the Supreme Court for a generation to come. It is a fitting reminder of the ineluctable connection between the debasement of American politics and the distortion of American law.
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