The Death of a Justice and the Hope of Magnanimous Statesmanship

Aberdeen, SD. Front Porch Republic is not normally a website folks visit for political hot takes or what Jonah Goldberg terms “rank punditry.” So at the risk of violating porch norms and being sent to my room without any cakes and lemonade, let me weigh the repercussions stemming from the death of Supreme Court Justice Ruth Bader Ginsburg. In doing so I shall risk my hot take immediately becoming lukewarm. Events are moving with rapidity, and the opinion rendered at 8:00 am (the time when I write these words on Saturday the 19^th) may be passé by the time I write the last paragraph. Let me mitigate such possibility by using the death of Ginsburg to meditate on the nature of statesmanship and the magnanimity that is part and parcel of that art.

It took only twenty minutes to render my initial take on Ginsburg’s death obsolete. Speaking in purely political terms, not to the sadness that surrounds any death, I initially believed that this was a perfect opportunity for all sides to call a kind of truce. Senate Majority Leader Mitch McConnell had made his point four years ago when Justice Antonin Scalia died and McConnell refused to even hold hearings on President Obama’s nominee to replace Scalia, Merrick Garland. That was political hardball, and it worked when Donald Trump implausibly won the election that November. So McConnell has proved he can play tough. The stakes are different this time, and McConnell could make this court vacancy a subject of the election going forward and let the people decide. Trump could gain points by not nominating a replacement and engaging in a rare moment of restraint and conciliation. The worst case for Republicans is that Biden wins (which is likely), but given that Ginsburg was a solid liberal vote the balance of the Court would not shift. Biden gains in this scenario, obviously, because he is likely to win the election and he would get to nominate Ginsburg’s successor and, since Democrats are also likely to win control of the Senate, get that person confirmed relatively easily. There is slight risk for Democrats because as the events four years ago demonstrated, strange things can happen in elections. Even for the Democrats, this magnanimous approach seems to yield the best long-term results, and given the other option—Republicans ramming through a nominee right now—the risk is worth it. Ginsburg’s death seemed to me to be a perfect opportunity to ease our political tensions. Everyone looks good and no one really loses.

I tweeted out a version of the above and about twenty minutes later Mitch McConnell put out a press release that works on the assumption that Trump will be putting forward a nominee. So much for my high mindedness. Republicans such as Ted Cruz, Rick Scott, and Martha McSally have endorsed McConnell’s tactic, while Lisa Murkowski has indicated she will not support such a move. If President Trump and Republicans continue along this path, one suspects the Democrat response will not be calm acceptance. And we thought the Kavanaugh hearings were brutal.

This moment is fraught with peril. We do not need reminding of how bitter, partisan, and polarized American politics is today. In order to have a community, people need to hold some things in common. America in 2020 is increasingly a nation of people who share a geography while holding wildly differing values. In the midst of a pandemic, urban violence, and a campaign that hardly inspires memories of the Lincoln-Douglas debates, a bitter Supreme Court nomination contest this close to the election threatens to slash the remaining fiber holding us together.

Over the last twenty years or so, Washington has been in a tit-for-tat fight over who can violate more norms. This has been especially true in the Senate over such matters as the filibuster and, tellingly, federal court nominations. Refusals to hold hearings. Attempted filibusters of judicial nominations, even nominations to the Supreme Court. Applying the “nuclear option” to such filibusters. Each party taking both sides of all these tactical maneuverings depending on how the present circumstances politically benefited them. It is illustrative that perhaps the two most despicable acts in Washington over this time have pertained to judicial nominations, namely the treatment of Bush appellate court nominee Miguel Estrada in 2002-2003 and the embarrassment that was the Kavanaugh hearings just two years ago. Do we really want to go through this again?

The problem with such tit-for-tat games, as we know through national security theory, is that each side has little incentive to back down first due to the fear that the other side will exploit this perceived weakness to win the game. Already some Republican commentators are saying they cannot give in. Trump must nominate a justice because “we all know” that’s what the Democrats would do. Perhaps. Being the bigger person always carries the chance that one will be played for a chump. If the Republicans “cave,” the Democrats may not see this as a magnanimous gesture but a sign of weakness. “Those fool Republicans,” they might say, “they didn’t play hardball the way we would. Now let President Biden nominate the most radical justice we can find.” The fear of this scenario coming to fruition is what motivates some Republicans. Yet someone must be the first person to practice restraint and to act on the basis of the common good. That takes more courage than our political system can, perhaps, currently cultivate. We suffer from a distinct lack of statesmanship.

Statesmanship is often juxtaposed with demagoguery. A demagogue is one who uses either flattery or fear to gain power for himself rather than acting for the public good. By playing to public prejudices, anxieties, or fears, the demagogue exploits the passions of the people to his own end. Think of Donald Trump claiming he was going to build a wall and get the Mexicans to pay for it. The first part of that claim was plausible, but the second was just demagoguery. The Mexicans were never going to pay for such a thing. But Trump played to both the public desire for something-for-nothing (hey, it’s a wall and we didn’t even have to pay for it) as well as taking reasonable concern over immigration and stoking it into irrational fear. Democrats have done the same thing regarding “free college.” First of all, such a thing will never pass and advocates such as Bernie Sanders and Elizabeth Warren know it. So they are raising hopes that they know cannot be fulfilled. Also, free college isn’t really free, is it? As I tell my students, I am a whore not a slut. I expect to get paid. The lights don’t stay on for free. It gets cold in South Dakota in January. Those buildings will not heat themselves. College will never be free. “Free college” really means “paid for by someone else.” But the constituency to which such claims are aimed, young people and their parents, only hear the word “free.” That’s demagoguery, playing to the natural passion to get something for nothing without thinking through the plausibility or goodness of what is being offered.

What, then, is the statesman? The statesman is the leader who puts public good above private gain. In this sense the statesman must limit himself and the public. Each of us when we look into our soul knows that there are things we want that we should not have or there are little prejudices or petty bigotries that we must restrain. Who hasn’t had the experience of being with someone obviously wealthier than we are and feeling that twinge of envy? Most of us are able to recognize these harmful passions and seek to control them. But what if someone comes along and says, “It’s good to have the fourth donut” or “Those people really are bad and you should hate them”? We are all capable of being corrupted by the charismatic leader who tells us that our gluttony is good and our hatred is virtue.

So the statesman, like a good friend or parent, will say “no,” both to himself and to us. Even though this policy proposal or that political tactic might gain power, it is not in the service to the public so it must be eschewed. The statesman must be courageous enough to tell the people that some of what they want is not good for them. In Federalist 71 Alexander Hamilton famously writes, “There are some who would be inclined to regard the servile pliancy of the Executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted.” Hamilton warns against those who would give “an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.” For this reason, Hamilton argues, the president must have a long enough duration in office, four years, to withstand the people and hopefully have his courage rewarded when he is proven correct. I often point to Ronald Reagan’s promotion (along with Paul Volcker) of high interest rates in the early 1980s to squeeze inflation out of the economy. He knew it would cause short term economic and political damage. He was right. The country went into a recession, and Reagan’s party took a hit in the 1982 midterm elections. But by 1984 he had been proven correct. A booming economy helped propel Reagan to a landslide victory. This took courage, statesmanship.

Statesmanship requires prudence, the ability to find the right method to achieve a good end. It does no good to have noble ideals but be incompetent in bringing them to fruition. Statesmanship also takes moderation, knowledge that political life is made up of various competing goods and those goods must be kept in proper balance. Statesmanship also requires magnanimity. Magnanimity as described by Aristotle in the Nicomachean Ethics is sometimes translated as “pride.” In English this is a problematic word because depending on how it is used it can be either a virtue or a vice. When Austen writes of “pride and prejudice,” she means it in the sense of the vice. What we call the vice of pride, of heightened self-regard, is more accurately called vainglory, the greedy hogging of glory that does not rightfully belong to us. In Christian terms it is taking on glory to ourselves that rightly belongs to God. That’s why it is one of the seven deadly sins. But we also speak of pride in a positive sense, like “You should be proud of what you’ve done,” or if someone debases themselves we ask, “Have you no pride?”

Of course Aristotle means pride in this second, noble sense. Aristotle says of the proud or magnanimous man, “Now the man is thought to be proud who thinks himself worthy of great things and is worthy of them.” Not only does he think himself worthy, he is worthy. The proud man is concerned with honor, which is a dicey quality because honor is something bestowed on us by others. This assumes that others are worthy judges of our actions. Aristotle maintains that for the magnanimous man “honor from casual people and on trifling grounds will he utterly despise, since it is not this that he deserves, and dishonor, too, since in his case it cannot be just.”

The magnanimous man is worthy of good things. For the vicious man a good thing such as political power is a curse because he will not know how to use it well. Here we might meditate on the difference between Shakespeare’s Henry V, a magnanimous man who muses over whether he is using his power justly, and Richard III, a man driven only by the desire to rule and have. Aristotle’s magnanimous man despises falsehood and flatterers, valuing truth above all. He values the beautiful over the merely useful. His anger is righteous in that he gets angry at the right things to the right degree. There is injustice in the world, and it would be a moral deficiency if it did not anger us. But anger is a dangerous emotion and must be held in check.

How might all this apply to our current crisis, especially that provoked by the death of Justice Ginsburg? What might statesmanship look like? Statesmanship on the part of President Trump and his Senate faithful might mean giving up the power to ram through a Supreme Court nominee. They must know it will cause division. They must know that after the denial of a vote on Merrick Garland this will reek of hypocrisy. The country cries out for a political leader to simply do the right thing, even at a cost to their party and their personal interests. This is why we celebrate George Washington and his willingness to walk away from power both when he resigned his commission in the Continental Army and when he departed after a second term as president. In a literary vein, we might point to Gandalf and Galadriel turning down the Ring of Power, knowing that it is precisely their desire to do good though any means that will corrupt them. Or to the contrary think of Robert Penn Warren’s Willie Stark, who begins a political career with noble goals, but over time he lies to himself, believing that his eventual corruption is justified because ultimately he means so well. If he personally profits from his political power, doesn’t he deserve it, much as Gollum convinced himself that he “deserved” the Ring, justifying the murder of his friend in order to acquire it? Would not the country celebrate a president and Senate who could enhance their power via the Court, but refused to so for the public good? This is the sort of magnanimous gesture that should rightly bring honor.

It is not just Republicans who need to practice statesmanship at this time. Let us assume things play out as I and conventional wisdom predict, namely that Joe Biden becomes president in January 2021 and the Democrats gain control of the Senate. A President Biden, if he is to act the statesman, should match the magnanimous gesture with one of his own. Perhaps he doesn’t nominate an ideologue. Heck, maybe he nominates Merrick Garland, a judge, as I understand it, of the moderate left and, it should be noted, an older man who will not serve long on the Court. Thus Garland’s impact would not be generational. But if Biden picks a young ideologue, this would confirm in the minds of Republicans that they have been played for fools, Democrats taking advantage of a magnanimous act for their own demagogic purposes. The recriminations would be bitter.

The country needs a détente, a lessening of tension. Immediately upon Ginsburg’s death pundits were predicting Armageddon. Just what 2020 needed: a bitter Supreme Court fight in the midst of the election. I see things differently. This is an opportunity for statesmanship, if only our leaders will seize it. I must say I am not confident. In literature and in life, though, heroes often arise from the strangest places and at the most unexpected times. Perhaps even in our times, with our petty leaders, with our corrupt populace, statesmanship can arise. Perhaps.