Mitt Romney’s vote to convict President Trump during February’s impeachment trial earned him accolades for integrity and bravery. In making the pronouncement that he supports Trump’s maneuver to ramrod through Ruth Bader Ginsburg’s Supreme Court replacement, however, Sen. Romney is giving up his status as the left’s poster child for putting country before party -- and potentially jeopardizing the court’s legitimacy and conservative majority in the process.
Unlike most of his Republican colleagues, Romney wasn’t in the Senate in 2016, and therefore didn’t have to take a position on the Merrick Garland appointment stalled to death by Senate Majority Leader Mitch McConnell and his obedient Republican colleagues. So, you can’t say Romney is being hypocritical. You can say, however, that he’s being short-sighted. By his actions, Romney is expressing his willingness to allow a president he deems unfit for office to make a lifetime appointment to the U.S. Supreme Court so long as that appointment serves the broader goal of a more conservative federal bench. If the 2020 presidential election is close, ironically the only Republican to vote to remove Donald Trump from office may be partially responsible for helping impanel a justice whose first case determines if Trump stays in power.
Romney’s decision to back the McConnell-Trump play also ensures a continuation of the partisan warfare and blind pursuit of power that has so thoroughly compromised America’s governing institutions. In the event that Joe Biden wins the presidency and the Democrats take back control of the Senate, it also ensures the shredding of the last vestiges of credibility of the Supreme Court itself.
America has a history of low-level partisan conflicts that play out with a tit-for-tat pacing. The judiciary, with its lifetime appointments, has become yet another venue for that warfare. Harry Reid eliminated the filibuster for judicial nominations other than the Supreme Court so that he could push through the confirmation of judges to the D.C. Circuit Court and protect Obamacare. That gave McConnell the justification to eliminate the filibuster altogether for Supreme Court nominations to ensure the confirmations of Neil Gorsuch and Brett Kavanaugh.
Those who doubt that Senate Minority Leader Chuck Schumer wouldn’t use that same justification if he replaces McConnell to eliminate the filibuster altogether and pack the high court with more liberals are kidding themselves. Only the thinnest thread of pretense is required today by either side to act in an overtly partisan manner. With the tribal drums of the partisan media and Twittersphere beating loudly in unison, a lack of response by Schumer would be viewed as nothing short of an outright betrayal of the unspoken partisan oath – seize power at all costs.
If the Supreme Court is to be saved from the virus of hyper-partisanship, it will take an act of sacrifice by a member of the court’s conservative wing. One justice would need to resign with the very public and explicit purpose of giving Joe Biden the appointment that was taken from Barack Obama. Such a sacrifice would not be lost on the American people: It would be rightly celebrated as a heroic act. It would be the equivalent of the lone protester standing in front of the line of tanks in Tiananmen Square – exposing the corruption of politics as usual. If it succeeded, the court’s legitimacy would be upheld, and the conservative majority would remain intact.
I realize that the very idea of someone in politics making a sacrifice so significant will be met with derision from the chattering class. The naïve notion that anyone in politics isn’t solely out for themselves is almost laughable in a town full of self-servants masquerading as public servants. But hear me out.
Going back to 2016, even if Merrick Garland or another Barack Obama appointee had been seated as Antonin Scalia’s replacement, the court today still would have a working conservative majority. President Trump would have appointed two of the court’s nine members instead of three, which is certainly enough for a first term. Yes, we would have had different rulings on a handful of decisions, but Obamacare would still have been preserved (at least for the time being), Roe v. Wade would still be the law of the land, and the Little Sisters of the Poor would still have prevailed against the heavy hand of the federal government. In short, the damage wouldn’t have been permanent.
But that didn’t happen. And to rectify the hardball GOP tactics that kept Garland off the court, neither a Senate Majority Leader Schumer nor a newly elected President Biden can simply remove Neil Gorsuch and have a do-over. But what Democrats apparently can do – and some are already vowing to do – is use McConnell’s actions as a pretense to pack the court. And if they make the decision to cross that line, they won’t stop with simply adding two justices to rectify the sins of the past. The court will seat four new justices, creating a 7-6 liberal majority.
Make no mistake, this wouldn’t be a proportionate response. It would seriously accelerate the hyper-partisan warfare that has paralyzed Washington. But it follows a relentless pattern of partisan escalation. It’s a response that all but guarantees a 17-member Supreme Court the next time the Republicans control the White House and the Senate. While some Democratic Party optimists may profess that will never again happen, the American people have a funny way of surprising their elected masters, particularly with the stench of corruption in the air.
To protect the sanctity of the court, someone needs to walk this conflict back from the edge. It won’t be our warring partisans in Congress who, as Mitch McConnell has demonstrated, cannot let any opportunity go to waste. Anyone expecting Chuck Schumer to be the better man hasn’t been paying attention. No, our savior will have to come from the Supreme Court’s own ranks, specifically from its conservative wing.
So, is there a potential hero among the five Republican-appointed justices? Someone willing to spend more time with their families and favorite hobbies? Someone content to contemplate what was sacrificed while fly-fishing or making $100,000 speeches as the man who saved the Supreme Court? We’ve produced public servants like that in the past. One of them was from my state of Kansas.
In 1868, America was still trying to heal from our country’s most divisive period – the Civil War and Abraham Lincoln’s subsequent assassination – and Andrew Johnson had become an accidental president. Relations between the White House and Senate Republicans, who themselves were divided, were volatile. After the House impeached Johnson for firing a member of his cabinet, the president’s fate was in the hands of the Senate.
In an initial straw poll among the 36 Republicans in the chamber, one man stood alone against the tide. He saw his party’s tactics for what they were, an attempt to remove a political adversary and diminish the presidency in the process. He rose above partisanship and voted “no” against convicting President Johnson – saving the presidency in the process.
His name was Edmund G. Ross. He lost his next election and was drummed out of the Republican Party. His story was chronicled almost 90 years later by another senator, John F. Kennedy, in his book “Profiles in Courage.” In the opening pages of that book, the future president called courage “the most admirable of human virtues.” The volume is itself a testimony to how rare a trait it is in politics. In defining it, JFK borrowed a line from Ernest Hemingway, who described courage as “grace under pressure.”
Today, we could use a little grace in American politics. Justice Alito, is it time to hire a speaker’s bureau? How about you, Clarence Thomas?