Because of the toxic political climate, I’ve developed an interest in norms. Not the guy from Cheers, but the informal understandings that we have in our society that regulate our behavior as we live and work in community with each other. They are not laws, but ways that we expect each other to behave. I hold the door open; you say thanks. I bump into you and I apologize. We (mostly) respect the item limit in the express line at the grocery store. We don’t notice until someone violates the norm; that’s when you find yourself counting the items on the conveyor belt.
I recall Inauguration Day, when President and Mrs. Obama witnessed the ceremony, congratulated the new president and his spouse, and then they left. The helicopter rose up above the Capitol, flew over the White House and a new presidency began. This peaceful hand off-of power, with its pomp and rituals, is rare in this world and is a hallmark of our imperfect democracy. The Constitution gives us the electoral process; the elected and appointed officials hold the norms that have allowed this to happen through the almost two-and-one-half centuries of our country’s existence.
However, the last 816 days with Donald Trump as President have seen norms shattered across the executive branch and the Republican-controlled Congress. While Donald Trump has taken norm-breaking to new heights (or depths), it didn’t start on Jan. 20, 2017. Just think: Merrick Garland.
Supreme Court vacancies don’t happen predictably. Openings are created by resignation or death. They are not distributed fairly, either. President Eisenhower had five appointments, while President Carter didn’t have any. When a vacancy does occur, the sitting president would make an appointment to the Supreme Court with the advice and consent of the Senate. It is relevant to note that the Senate is inherently undemocratic. Each state gets two Senators, California with 38 million people or Wyoming with 573,000 people.
James Madison had a nominee rejected, as did 10 other presidents. Up until 1916, there weren’t even hearings on appointments, just an up or down vote. The first hearing was on the nomination of Louis Brandeis, the first Jewish nominee to the court. There was not another hearing until 1939 when FDR nominated Felix Frankfurter, the second Jewish nominee.
Supreme Court justices were routinely confirmed by voice vote until 1967 when LBJ nominated Thurgood Marshall to the Court. Marshall was African-American, the lawyer who successfully argued the anti-school segregation case in front of the Court in 1954. His appointment resulted in the first roll call vote for a justice, and the vote resulted in a 67-11 vote to confirm Justice Marshall. All of the “no” votes were cast by southern Senators.
That is how norms change. There were no hearings for more than a century, and then a Jewish nominee is presented to the Senate. The first African-American nominee is confirmed by the first roll call vote.
In 2008, the country elected our first black president, Barak Obama. He was elected with 52.9% of the vote, 10 million more votes than John McCain was. And Minority Leader McConnell vowed to block him at every turn. McConnell was patient. He and his colleagues stymied many of Obama’s initiatives over the entirety of the Obama presidency. That is politics; it has to be expected.
Starting in 2015, Leader McConnell made a concerted effort to block President Obama’s appointments to the bench, allowing only 20 judges through in the last two years of President Obama’s term. In response, the Democrats pushed through a rules change that abolished the filibuster for all but Supreme Court nominees. Then, in February of 2016, Justice Antonin Scalia died.
One hour after his death, Senator McConnell declared, “This vacancy should not be filled until we have a new president.” He cited the Biden Rule, a rule that was never adopted by the Senate because it was never proposed to the body. It was merely an idea in a speech made during a time when there wasn’t even a vacancy on the Court.
The Republicans used this rule to grab a vacant seat from the rightfully elected President, who was elected by a majority of the voters for a four-year term. The Republican Party, the so-called Party of Lincoln, smashed a norm in order to deny the first African-American president his right to nominate a justice to the Supreme Court, illegitimately holding the next vacancy for Trump. It was a gamble, and it paid off. The norm was less important than power. And, history shows us that each time that equality makes an advance, norms are changed. Our current President is the prime example.
The only way our country can work is through mutual respect and norms that endure. Sadly, both are in short supply today.
Clare Higgins, of Northampton, a former mayor of the city, is executive director of the nonprofit Community Action Pioneer Valley. She can be reached at opinion@gazettenet.com.