What distinguishes America from other nations around the world?
You might answer that question in a number of ways. We have the biggest defense budget. No one else is even close. We also have the most people in prison. Yikes. But I hope one answer is that we are a nation of laws rather than of men. In other words, it doesn’t matter who you are or who you know. The same rules apply to everyone.
Despite President Trump’s pardoning of his friends and cronies (Democrats have done the same), I like to think that what’s carved in stone above the marble steps of the U.S. Supreme Court still holds true: Equal Justice Under Law. For many years, I practiced law at that court, and it always made me proud to see those words.
We’re about to find out whether America is still such a place, or if something different, something new, now stands in its place.
Just four years ago — and more than nine months before the 2016 presidential election — Justice Antonin Scalia died. For conservatives, it was a cataclysmic loss on the court. Worse still for them, Barack Obama was president. It was his right under the Constitution to appoint a successor, which he did in a matter of weeks.
But it is the Senate’s right under that same Constitution to “advise and consent.” In short, to hold a confirmation hearing on the merits of the nominee and, then, to vote him up or down. Obama’s nominee was a smart, centrist Democrat with a proven track record. You might have expected a unanimous vote — the same reception Democrats gave Republican Scalia when he was nominated.
That’s not what happened. Senate Republicans, led by Leader Mitch McConnell, bowed up. Not only did they refuse to give the president’s nominee a vote, they didn’t even hold hearings to allow the administration to make its case. It wouldn’t be fair to the American people, said McConnell and his Republican colleagues.
A Supreme Court nomination is too important to be considered in the last year of a president’s term. Citing historical precedent, Republicans insisted that the American people should be allowed to choose the president they believed should fill this important vacancy. Nine months later, Donald Trump was elected, and one of his first acts was to appoint Republican Neil Gorsuch to the court.
Now, another great Supreme Court justice has died — Ruth Bader Ginsburg — whose loss for liberals is as earth-shattering as was Scalia’s for conservatives. Only this time it’s not even nine months before the election. It’s less than two. And the court isn’t even in session.
But the real difference isn’t the calendar. It’s who’s in the White House.
You would think that men like Mitch McConnell, Lindsay Graham and Lamar Alexander would stand behind their word. Stand on principle. Apply the same rule to Republicans that they did to Democrats.
Lincoln did. Even during the Civil War, when Chief Justice Roger Taney died one month before the 1864 election, the nation’s first Republican president refused to appoint his successor until the American people had spoken.
Of course, that’s what Lincoln did. He was a man of principle. Other people of principle would do the same. Do you believe for one minute that Howard Baker or Bill Haslam would set one rule for their political adversaries and another for themselves? I do not. But McConnell, Alexander, Graham and dozens of their colleagues do not appear to be people of principle. They appear to stand not for equal justice under the law but for justice for my side, injustice for yours.
The slow unraveling of Americans’ trust in their government has been going on since Vietnam and Watergate. It accelerated during the Clinton years and has been in full gallop since Bush v. Gore, when the Supreme Court — voting along strict party lines — took the decision about Florida’s recount away from the Florida Supreme Court and declared Bush (who had lost the popular vote) the winner.
If McConnell and his Republican colleagues ram this nomination through the Senate when early voting already has begun in more than a dozen states, what will happen? Will it backfire on Republicans and result in their ouster by the voters? Will millions take to the streets in protest? What if Biden wins, and Senate Republicans still try to ram through the nomination before the new president can assume office in January? Will the country we have feared is coming apart actually do it?
No one can answer these questions, but here are some things we can know for certain. Alexander — our hometown hero — who has stood tall for the Great Smoky Mountains, Oak Ridge and the Tennessee Valley Authority — will go down in history not as a statesman but as a crony of Donald Trump and Mitch McConnell. A person who was willing to change the rules when it suited his purposes.
As a native Maryvillian, that makes me sad. Worse still, 2020 could be remembered as the year when we learned an awful truth about our great nation. That we are no longer a nation of laws but a nation of men. Where all that matters is who’s in power and who you know.