Our democracy has been attacked from outside, by Russia, and Americans are rightly concerned, demanding investigations and answers to a growing number of questions.
But what are we doing to democracy ourselves?
The Senate recently confirmed Neil Gorsuch to become an associate justice on the Supreme Court and fill the vacancy left by the late Justice Antonin Scalia.
That vacancy persisted only because the right to fill a Supreme Court seat was denied a sitting president—for the first time in American history—when Senate Majority Leader Mitch McConnell refused to hold hearings for President Barack Obama's nominee Merrick Garland and to accept the consequences of the 2012 presidential election. In our nation’s history, there had previously been two dozen Supreme Court vacancies in a president’s last year in office, and twenty-one of twenty-four nominees had been confirmed, but never before had the Senate failed to hold hearings, let alone vote on a nominee.
And so, in what some have called a political masterstroke, McConnell succeeded in restoring and preserving the Court's conservative voting majority that existed before Scalia's death.
With our horse-race political journalism, it’s easy to get swept up in who won, who lost and who outplayed whom. But let’s not lose sight of the larger implications. McConnell didn't just outmaneuver the Democrats. He outmaneuvered democracy.
This isn't about Judge Gorsuch—just as what happened to Judge Garland wasn't about him—and this isn’t about partisan politics. This is about what we are doing to our own democratic institutions.
Democracy is more fragile than we would like to admit. As Timothy Snyder has noted in his latest book, “On Tyranny: Twenty Lessons From the Twentieth Century,” democracies collapsed when “[a] party emboldened by a favorable election or motivated by ideology, or both, . . . change[d] the system from within.”
Is our democracy inherently stronger than those that failed? I hope so. But surely its survival will depend on our willingness to protect our democratic institutions and constitutional rules, not game them when it suits us.
So this is a time for deep reflection about the state of our democracy and the integrity of the Supreme Court that will be questioned whenever Justice Gorsuch rules with the majority in a 5 to 4 decision.
Democracy isn't a win-at-all costs, no-holds-barred game. If you don't play by the rules, the game is over.
Imagine a baseball game where a batter gets a hit and, say, ignores runs straight to third base. Or imagine a game of Monopoly where a player, say, draws the “Go to Jail” card but refuses to accept its consequences. Those games can’t proceed without agreement on what is permitted and what is not.
It’s tempting to think of the change in the rules that led to Gorsuch’s nomination and confirmation as an aberration, but these kinds of changes (actual and proposed) have lately become “normalized.”
Just look at what this century has brought us: a Supreme Court decision in Bush v. Gore that ended the 2000 presidential election in George W. Bush's favor, but somehow wasn’t meant to set a precedent for future cases; most recently, a Republican-controlled legislature in North Carolina that passed laws to limit incoming Democratic Governor Roy Cooper’s authority after he defeated Republican Governor Pat McCrory, and senators who argued that if Hillary Clinton were to win the election, the Senate should refuse to confirm any of her nominees to the Supreme Court. And let’s not forget the myriad states that have been imposing voter identification requirements just to keep Americans from voting.
I don’t know how long America can survive when we take the basic ground rules of our democracy so lightly. I wish there were a public clamor to look into this clear and present threat, because it’s not just about Russia—it’s about America, too.