On Sept. 18, Justice Ruth Bader Ginsburg passed away from complications due to pancreatic cancer. She never wavered from her liberal principles, writing thoughtful majority opinions in landmark gender discrimination and environmental cases and fiery dissents in abortion-related cases. May she rest in power. Without much time for Americans to grieve, Sen. Mitch McConnell (R-Ky.) has already committed to confirming her replacement before the November election, and given the lasting wounds of Judge Merrick Garland’s confirmation, Senate Democrats likely find the temptation to resist him very compelling. Although it may be politically beneficial to deny President Donald Trump’s nomination, opposing Senate Republicans would be hypocritical and unethical.
Since Ginsburg’s passing, debate has erupted on filling her seat. McConnell’s statement, in which he promised Trump’s nominee will “receive a vote on the floor,” stands in direct opposition to his position four years ago. When Justice Antonin Scalia passed away in 2016, McConnell claimed former President Barack Obama shouldn’t fill Scalia’s vacancy as the nomination “should be made by the president the people elect in the election that’s underway right now.” Despite the current election’s proximity, McConnell is in a rush to fill the seat and, by his own logic, prevent the people from having a say. His blatant hypocrisy deserves condemnation.
Democrats have many reasons to oppose Trump and prevent his nominee’s confirmation. The most obvious is that Supreme Court decisions are paramount, and replacing Ginsburg with a conservative justice would shift the court’s center of gravity in a decidedly conservative direction. Oftentimes, the most important votes in the Supreme Court are decided by slim margins, such as in Obergefell v. Hodges when the court legalized same-sex marriage by a single vote. In addition, an open seat would heighten the election’s stakes and motivate more Democrats to vote and donate. Donations for the Democratic Party have soared after Ginsburg’s passing. For these reasons, many Senate Democrats have already pledged to deny any nomination from Trump, with some House Democrats going as far as considering another impeachment to stall a nomination.
The ethical case for denying the nomination is more complicated, however. Unless Trump’s nomination is unqualified for the job, nothing in the Constitution states Trump can’t nominate a replacement. Any argument to the counter would be at direct odds with the Democrats’ position in 2016, a fact some Republicans are already capitalizing upon. Being a hypocrite is, according to some philosophers, one of the greatest moral wrongs. As political theorist Hannah Arendt claimed in her book “On Revolution,” hypocrisy is the “the vice of vices,” and “the hypocrite is really rotten to the core.”
Jay Wallace, a professor of philosophy at the University of California, Berkeley, argues that if someone is a hypocrite, they lack the right to blame others. If Democrats try to prevent Trump’s nomination from taking the vacancy, they will lose the right to morally condemn the Republicans for their decision to deny Garland a floor vote.
One could argue that, considering the many contentious and important issues in which the court could play a part in, such as abortion, civil rights and the environment, Democrats could justify using any means necessary to keep the court left-leaning, including packing the court. But by doing so, Democrats would become hypocrites, and embracing an ends-justify-the-means approach to politics opens the door to other tactics such as violence.
Democrats could claim that they are trying to reclaim a stolen nomination. Under that reasoning, preventing a nomination now would obtain justice for Garland’s aborted 2016 confirmation. But this kind of eye-for-an-eye moral reasoning is immature.
Yes, McConnell and the Republicans showed their ugly colors in 2016, but they are not wrong in their push to nominate and confirm a new justice before the election. Trump has a constitutional right to fill the seat, regardless of Ginsburg’s dying wish or any supposed precedent set in 2016. Trying to prevent the nomination is blatantly hypocritical and lacks any ethical foundation.
I expect Senate Democrats to fight the nomination. They are politicians, and doing so is politically prudent. But those composing the Democratic Party don’t have the same obligation. If Democrats as a whole buy into the by-any-means-necessary mindset and repeat the talking points laid out by their politicians, then both sides will be equally hypocritical and immoral, and the U.S. will only become further divided. Instead, Democrats should see the denial of a nomination as an unethical action and take moral responsibility by accepting the fact that Trump is allowed to replace Ginsburg.
It’s a tough reality, but the ethical and legal grounds to deny Trump’s pick are shaky at best. It’s easy for Democrats to point out that McConnell and the Senate Republicans are being hypocritical, but it proves tough to remain consistent themselves. The stakes are immensely high and, while it’s easy to forgo moral considerations, I urge against this. It is in times of great crisis that making moral choices is most difficult, and I hope Democrats make the right choice and accept the nomination.
Martin Shane Li (22Ox, 24C) is from Rockville, Maryland.