In March 2016, Justice Antonin Scalia passed away and President Barack Obama nominated Merrick Garland to take his place. Senate Republicans blocked the nomination, saying that presidents should not be able to fill Supreme Court vacancies in an election year. The United States Constitution makes no such restriction. Garland was highly qualified, having served as chief judge on the U.S. Court of Appeals for the District of Columbia Circuit for some time.
In September 2020, less than two full months before the 2020 presidential election, Justice Ruth Bader Ginsburg passed away. Justice Ginsburg passed away on a Friday evening. The following Tuesday, President Donald Trump stated that he would announce his nominee for her replacement on Saturday. As planned, Trump nominated Amy Coney Barrett on Sept. 26 in a Rose Garden ceremony which appears to have become a super-spreader event in the ongoing COVID-19 pandemic. Republican senators hastened to announce their support for the nomination.
Sen. Mitch McConnell, who led efforts to block Garland’s nomination, is now leading the push to confirm Judge Barrett. The list of senators who opposed Garland’s confirmation as senators in 2016 and are now supporting Barrett’s nomination is 39 names long.
Of course, the list of Democrats who’ve done the same switch in the opposite direction isn’t exactly short. Republicans started this fight and made up a ridiculous claim with no basis in the law to block Merrick Garland’s confirmation, but Democrats are now stooping to the same ridiculous level. The difference in time between the elections and Scalia and Ginsburg’s passings is significant, but the president still has legal authority to nominate a new justice. In other words, “they started it” is not a valid legal doctrine.
This stunning display of hypocrisy is not random, nor is it solely a result of these specific senators’ lack of integrity. It is the culmination of decades of deregulation of American elections bringing more and more money into politics and it is the result of of voters rewarding showmanship and partisanship over substance and integrity. Until common sense regulations limiting political spending are put in place, the rich will continue to buy politicians and policies. Common sense regulations must come from Congress and state legislatures, not piecemeal Court decisions, and that will not happen until voters prioritize electing honest, qualified candidates over good sound bites.
At this moment, it is disappointing that the awe-inspiring Justice Ginsburg will likely be replaced by someone whose entire career seems dedicated to making decisions that undermine or invalidate Justice Ginsburg’s achievements. It is embarrassing that an entire country is reacting to the death of an esteemed judicial leader by immediately squabbling over her replacement.
Yet in the long term it is perhaps even more disappointing and embarrassing that a country’s entire political establishment is flip-flopping on its positions at will for the sake of ever smaller bits of power. We have reduced politics to public theater, financed at extraordinary levels by taxpayer money. Even the most fervent supporter of any political candidate will freely admit that their candidate sometimes dodges questions, changes their position or takes liberties with the facts for the sake of winning over voters or gaining power once they’re in office.
This has perhaps always been true, but it has intensified recently, thanks to shortening attention spans and political polarization, and it has been growing since what many political scientists see as an inflection point in the second half of the 20th century. The Vietnam War, Nixon’s impeachment and the enormous crisis of trust they engendered created a seemingly long-lived, or perhaps permanent, “credibility gap” between those perceived as political elites and most voters.
Many analysts and pundits have pointed to this complete lack of integrity as a contributing factor for Trump’s success. Trump, the story goes, seems more authentic, less like a polished politician and more like someone you might know in real life. That story might have a kernel of truth, but disgust with today’s mainstream politicians is not a free pass for racism.
That said, even if one realizes that support for Trump is more a question of bigots having an excuse and outlet rather than disenchanted voters looking for authenticity, we absolutely must fix the crisis of integrity at the heart of our political institutions. Democracies cannot survive if their citizens do not think they are legitimate. The United States government, with Trump’s enthusiastic help, is losing the last bits of legitimacy it had left. If we do not get more honest, consistent politicians, then the entire system will be in jeopardy.
The question of how to get those politicians is not easy. The U.S., with the assistance of Supreme Court decisions like Citizens United v. FEC (the “money is speech” case), has set up a system of elections in which one must have a great deal of funds to win. This system produces candidates who are willing to say the right things and make the right promises to win backing from lobbyists and industry organizations. The corrosive effects of ever greater amounts of money have combined with the hollowing out of public debate and increasing rewards for partisanship over policy to create a government full of hypocrites.
We need limits on individual donations, prohibitions on donations by profit-seeking entities, the end of PACs and super PACs, limits on political advertising and consequences for dishonest ads, anti-corruption regulations which include more than quid pro quo, strict limits on lobbyists’ access to politicians, strict limits on politicians and their families’ interactions with foreign entities, moderate stipends campaigns so that non-rich people can enter politics and a host of other reforms. These changes cannot come from court decisions or pledges by candidates. They must be enacted with convincing majorities by Congress and state legislatures or they will not work. And that enactment requires better politicians who will be willing to write and pass such legislation.
We as voters have also become more comfortable with filling in the blanks. Amy Coney Barrett’s confirmation hearings are an exercise in not answering the question, because it has become customary for Supreme Court nominees to be coy about their actual beliefs. This election’s vice presidential debate, while at least less awful than the first presidential debate, was also dominated by unanswered questions and rhetorical dodges. This is not some epidemic of reticence. Politicians have learned that refusing to answer difficult questions and allowing voters to assume whatever they prefer the answer to be is a much more successful strategy than answering truthfully and inevitably alienating at least some people. Until we, the voters, reward honesty and forthrightness over obfuscation, even when we disagree with honest answers, this behavior will continue.
This will not be easy. As we saw in 2016 and again this year, the two-party system and primary system interact to yield very little voter choice in general elections and often select candidates whose base of supporters is enthusiastic but very small or they simply select the blandest candidate. Ending the two-party system is probably not possible without constitutional amendments, which are out of reach as long as our politics are controlled by money and dishonest politicians.
However, a large majority of voters do not participate in presidential primaries, and even fewer participate in state and local elections and primaries. This allows the voters who do show up, many of whom hold more extreme views, and large donors, who do understand the importance of primaries, to choose the candidates they prefer. If you feel dissatisfied with this year’s candidates or with political parties generally, the answer is to take primaries seriously and actually participate, not vote for demagogues or stop voting at all.
Voters have created similar perverse incentives when it comes to policy decisions while our representatives are in office. We decry hypocrisy but want our representatives to win no matter the cost. When Justice Ginsburg passed away, senators on both sides of the aisle knew that they absolutely had to toe the party line (unless, like Sen. Lisa Murkowski, they come from a swing state and hold a seat that will be up for contention in 2022). To do otherwise would be to anger their base and party for no clear reward. In a two-party system whose primary elections are dominated by extremist party members, there is no reward for sticking your neck out for decency.
None of this absolves any of the senators above or any other politician. All of them are adults with a great deal of social capital who constantly have the choice to reject hypocrisy and constantly fail to do so. But, it’s painfully clear that they are not going to fix this problem. Until we demand more egalitarian election practices, until voters reward integrity and honesty, we will continue to be disappointed and embarrassed by our politicians’ hypocrisy.
Electing Biden this year will at least slow the decline of our democracy. In the face of Trump’s increasingly anti-democratic actions, that counts for a great deal. But a new president alone cannot fix the problems that brought us to this point. We must demand more honest, consistent behavior from our representatives, and then demand that those representatives enact better election regulations. Those demands will occasionally work against the candidates or party we support, as both sides have become far too comfortable with money and dishonesty, though I would argue that one has gone much farther than the other. But compromising desperately needed reform for the sake of party loyalty is exactly what senators are doing now, exactly what we must oppose.
Contact Sarah Myers at smyers3 ‘at’ stanford.edu.
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