The battle over Trump’s next appointment to the Supreme Court should be heated and intense, but civil and respectful. Justices Scalia and Ginsburg would not have wanted it any other way.
The death of Ruth Justice Bader Ginsburg Friday means that there will be, as the Wall Street Journal rightly notes, a “titanic fight over her successor.” This is fitting and appropriate.
The stakes, after all, are very high: The future direction of the Supreme Court, our essential civil liberties, and the rule of law are all at risk.
Indeed, as Sen. Ted Cruz (R-Texas) points out, the Second Amendment right to bear arms is being erased from the Constitution because of the high court’s neglect. And religious liberty decisions typically are decided by a 5-4 margin and on narrow technical grounds that fail to reflect the overriding importance of this essential First Amendment right.
Judicial Power-Grab. Moreover, more left-wing “progressive” justices may well mean that the Court will legislate new and costly entitlements into the Constitution—a “right to healthcare,” for instance.
Sounds farfetched? Maybe. But so, too, did a Constitutional right to homosexual marriage—until it became politically fashionable and the object of a concerted legal campaign.
The result was the Court’s 2015 Obergefell v. Hodges decision that redefined marriage to include same-sex unions—an idea genuinely never contemplated by the American Founding Fathers who wrote the Constitution.
So yes, there is a lot at stake with this newest Court vacancy: whether we will remain a free and self-governing people, or whether we will be ruled by nine unelected judges who, increasingly, usurp from us our decision-making authority under the Constitution.
Scalia and Ginsburg. That said, we all can and should learn from the example set by Justice Ginsburg and the late great Justice Antonin Scalia. These two legendary jurists were ideological opposites and long-standing judicial sparring partners; yet they enjoyed a deep and abiding friendship.
Justice Ginsburg, of course, was the leader of the Court’s left-wing “progressives”; Justice Scalia the leader of the Court conservatives.
Their judicial opinions frequently clashed, especially on big, high-profile cases involving the Second Amendment, religious liberty, affirmative action, property rights, and state sovereignty. Yet, these two opposing jurists had great affection for one another and were genuinely the best of friends.
Justice Scalia’s son, Christopher, relays this wonderful and telling story from Judge Jeffrey Sutton during a visit Sutton had with Scalia before the justice’s death in 2016:
The Scalia and Ginsburg families regularly socialized. They celebrated every New Year’s Eve together, for instance. And yet: the two justices never allowed the intensity of their judicial disagreements to ruin or obstruct their personal friendship.
How to Fight. “I attack ideas; I don’t attack people,” is how Justice Scalia wisely put it. Good and wonderful people, he observed, can harbor or espouse very bad ideas. That means they are mistaken; it does not mean they are bad or deficient in character or morals.
In other words, politics is one thing; character is another thing; and, if you cannot distinguish between the two, you are allowing your politics to blind you to the decency and humanity of your fellow citizens, both left and right.
This is something all of us would do well to consider as we prepare for what will no doubt be a pitched political battle involving the next and newest justice of the Supreme Court.
High-Stakes Battle. This battle promises to be highly emotional and deeply felt—on both sides. The intensity and passion will be palpable. Everyone knows that there is a lot riding on this appointment. The next justice may well serve on the Court for 40 years or more.
But let us all strive to be fair-minded, judicious, and even-tempered. Let us all realize that, in the United States of America, our domestic political opponents are not our enemies; they are our friends, neighbors, and family members.
Let us all try to emulate the wonderful and worthy example of Justices Scalia and Ginsburg.
Civility. Let us disagree without being disagreeable. Let us vigorously engage the political debate without engaging in the politics of personal destruction. Let us recognize that, despite our profound disagreements, there is far more that unites us than divides us.
And, when the fight is over, let us come together as Americans who share a common political lineage and a worthy political goal: liberty and justice for all in these United States.
Surely, that is what Justices Scalia and Ginsburg would have wanted. And certainly, that is the example they set in their own lives through a deep and abiding friendship that transcended political and ideological differences.
May their example be our reality.
Feature photo credit: The Kalb Report, YouTube.
