Democrats and liberals are in a near state of hysteria over the likelihood that President Trump will win a second Supreme Court appointment following the resignation of Justice Anthony Kennedy. They would be upset at such a prospect under normal circumstances but now their anger is magnified by their twin convictions that President Trump “cheated” Hillary Clinton out of a victory in the 2016 presidential election and that Sen. McConnell “cheated” President Obama out of a Supreme Court appointment in 2016 after the death of Justice Antonin Scalia (a seat eventually filled by Justice Neil Gorsuch). Their desperation has led some to propose extreme measures either to block any new appointment or to plot future acts of revenge against Republicans for placing them in such a predicament.
These proposals set forth in anger and under duress are mostly destructive because they are made without consideration of consequences. All of us should have learned by now that every act of revenge provokes retaliation in a tit for tat process that continues until every norm is broken and institutional trust is thoroughly dissolved. Macbeth said it well: “In these cases we still have judgment here; that we but teach bloody instructions, which being taught, return to plague the inventor: this even handed justice commends the ingredients of our poisoned chalice to our own lips.”
Something like this has certainly happened with the appointment and confirmation of Supreme Court justices. It was not that long ago, in the 1950s, when justices were confirmed in the Senate by voice vote and sometimes without controversy and without extensive hearings. President Eisenhower elevated Chief Justice Earl Warren and Justice William Brennan by recess appointments, the latter in middle of the 1956 presidential campaign. Both were later confirmed in the Senate by voice votes. Few thought this was unusual because few feared the power of the Supreme Court. That sense of complacency evaporated in the 1960s as the Court began to intervene aggressively into controversial political subjects, such as school integration, police procedures, state legislative apportionment, the death penalty, and abortion. As the Court claimed more power in American life, it became more controversial, thereby provoking more criticism, more controversy over new appointments, and more challenges to accepted norms regarding appointments and deference to Supreme Court decisions. Over the decades, every controversial appointment or violation of established norms has provided precedents (or excuses) for more controversy, acrimony, and breaking of norms.
Continue reading the entire piece here at The New Criterion
______________________
James Piereson is a senior fellow at the Manhattan Institute.
This piece originally appeared in The New Criterion