The agony of justice

Justice Ruth Bader Ginsburg’s death has precipitated another untimely confrontation between the Republican and Democratic Parties over when her vacant seat in the Supreme Court should be filled. 

President Trump and Senate Majority leader Mitch McConnell (R-Ky.) have declared that they will fill the position within the time left in the term, either before or after the election. The Constitution authorizes the president to make the nomination to the Supreme Court, with the advice and consent of the Senate, without any provisions limiting such authority for an electoral year.  

Upon the death of Justice Antonin Scalia in early 2016, when Democratic President Barack Obama was still in office, McConnell and the GOP majority maintained that Supreme Court vacancies should not be filled in an electoral year, arguing that the electorate should have a say on the matter. This improvised parliamentary rule deprived Obama’s nominee, Judge Merrick Garland, from even having a hearing in the Senate to consider his nomination. The consequence of this maneuver was the nomination and confirmation of Justice Neal Gorsuch after Trump was elected president.

The Democratic Party’s protest of the GOP’s evident hypocrisy on changing the procedures at its political convenience should not come as a surprise to anyone. Neither should it cause surprise how certain Republican senators try to argue themselves out of their contradictions. Hypocrisy is a personal failing which may have political consequences. In the end, the question as to when the seat should be filled is a matter of political power and the purpose for which it is wielded. 

In the current political chess board, a Supreme Court nomination is a major piece for both parties. For President Trump’s reelection bid it is perceived as an opportunity to fire up his base and curry favor with certain demographic groups. For presidential candidate Joe Biden and the Democratic Party it is an opportunity to portray the opportunistic and unprincipled nature of the Trump administration. Of course, the stakes are much higher than that.

Already political pressure is being brought to bear on those Republican senators who are in close fights for reelection. In fact, Sen. Susan Collins (R-Maine) stated, as did Sen. Lisa Murkowski (R-Alaska), that she is not in favor of dealing with the Supreme Court vacancy at this time. With 53 Republicans and 47 Democrats in the Senate, McConnell cannot lose any more members of his party’s caucus if he expects to prevail in his intentions.

Although the nomination and confirmation of a Supreme Court justice is by its very nature a political act, that is not to say that politics and law are one and the same. The Supreme Court invariably portrays itself as being above the political fray. The truth of the matter is that it is a co-equal branch of government and its decisions have not only legal, but political, economic and social consequences. It is proper to highlight its political nature, as advocates for different causes do at any given time.  

That being said, there is a continuous tension between politics and the law that withstand collapsing one into the other. The principle of the rule of law as a check on the arbitrary exercise of power is perhaps the hallmark of a republican form of government. Where the law is perceived as the cat’s-paw of politics, it is reduced to its most instrumental level, ignoring its larger role in containing the inherent bellicosity and self-interest that characterizes human nature. It is here, perhaps, where the GOP has once again misstepped.      

During the past four years we have been witnesses to a constant attack on the rule of law for perceived short term political advantage. Since its inauguration, the Trump administration has made it a point to challenge the limitations imposed by the law on multiple fronts. Many of these challenges have been made within the confine of the law and reflect changes in policy: the softening the administrative regulatory strictures in the Environmental Protection Agency (EPA) and the reassignment of funds to finance the building of a wall on the border, to name a few. One may disagree with these decisions and still regard them as legitimate exercises of presidential authority under the Constitution. The remedy to addressing these policy differences, of course, is the election.  

Other challenges are more worrisome, such as President Trump’s legal rearguard action contesting the production of his tax filings, his defiance of the emolument clause, his contradictory behavior before the courts and Congress on impeachment and subpoena powers, the Roger Stone controversy, the improper use of force to disband peaceful protestors in Lafayette Square, among so many others.

Throughout his term in office President Trump has made it a point to brand his challenges to the law in personal terms, as a contest between himself and his adversaries. The president approaches the law as the litigant party he has been in the past. It seems that in his worldview, the law is merely a spectacle where opposing parties attempt to best each other, independent of any claim of justice or fairness. For him, the important thing appears to be to win. 

This approach to the law is what Dutch historian Johan Huizinga referred to as “agonistic justice,” characteristic of antiquity. The dramatic polarization and growing violence in the American body politic is a clear sign that this sense of agonistic justice, of law as power, of winner takes all, has filtered down to all sectors of society.  

In the wake of Justice Bader Ginsburg’s death, the agony of justice is again on display. When political leaders feel they are not bound by rules, even those made by themselves, they are inviting a similar response from their adversaries. Escalation is inevitable. We are in the midst of the decay of the rule of law. This is the price of hypocrisy.

Andrés L. Córdova is a professor at Inter American University of Puerto Rico School of Law.