The death of Justice Ruth Bader Ginsburg would be a tragedy at any time, but her death only six weeks before a rancorous presidential election has thrown a match into our already smoldering political tinderbox. At a time when inter‐party animosity is uncomfortably high, it’s time to call upon the better angels of our nature to determine the future of our most precarious branch of government.
In the coming weeks, there will be much discussion—if not shouting—over who should choose Justice Ginsburg’s replacement and how the Senate should behave. While the constitutional questions are simple—the president has the right to nominate a justice and the Senate has the right to confirm or not—there are bigger questions of political and institutional propriety at stake. A well‐functioning liberal democracy depends not only on determining what can be done—as in what is allowed by constitutional rules—but also what should be done.
The schismatic Trump era, and even the years before, have made the importance of institutional norms more apparent. Our Framers set up a well‐designed constitutional framework, but that terse 4,500-word document hardly contains all the rules needed to construct a free, liberal, and tolerant society. Some norms, such as not threatening to jail your political opponents, help establish the process of a peaceful transfer of power. Other norms, such as not Borking Supreme Court nominees, were violated long ago and became the new normal.
Those constitutional virtues have not been on strong display over the past four years. Elections have been contested, diplomatic powers have been abused, and pardons have been distributed as personal and political favors. Meanwhile, armed protestors have taken to the streets and actually fought and murdered their political opponents.
Read more at https://www.cato.org/blog/quench-fire-partisan-judicial-politics
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