海角大神

During the making of the U.S. Constitution, James Madison warned against 鈥渢he superior force of an interested and overbearing majority.鈥� Centuries later, when Ruth Bader Ginsburg was asked what she saw as threats to the rule of law, she replied, 鈥淭he problems of indifference, of tribal-like loyalties, lack of observance of the golden rule, 鈥楧o unto others.鈥欌��

These sentiments now seem lost as Senate Republicans and Democrats fight over how to fill the Supreme Court seat left vacant by Justice Ginsburg鈥檚 death. Rather than deliberate across party lines 鈥� in the spirit of 鈥渁dvice and consent鈥� that the Constitution demands 鈥� the senators seem 鈥渦nited and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens,鈥� as Madison warned.

Power dynamics may be part of how the Senate normally operates. Yet for decades that was not always the case for judicial appointments. Courts, by their inherent appeal to higher law, require elected leaders to also act out of principle in picking judges.

Now, with Republicans controlling both the Senate and White House and Democrats assuming they will gain majority rule after the election, each side is claiming the other is ignoring thei party鈥檚 interests or making moves that set dangerous precedents.

This runs against not only Madison鈥檚 advice but also Justice Ginsburg鈥檚 view of how public officials should get along. She understood that the norms of noble governance 鈥� civility, comity, and tradition 鈥� are enduring only to the extent that officials practice them. 鈥淚 am hopeful,鈥� she stated, 鈥渢hat people of goodwill in both of our parties will say, 鈥榃e have had enough of dysfunction. Let鈥檚 work together for the good of all people who compose the nation.鈥欌��

Many provisions in the Constitution were designed to forge deliberation and consensus. If Republicans and Democrats want to honor that founding document, they should look for procedures and practices that calm the fears of Americans during a time of deep polarization and a pandemic.

They could look to the example of humble listening in the friendship between Justice Ginsburg and the late Justice Antonin Scalia. Each was a champion of a particular judicial perspective yet they had a profound respect for each other鈥檚 intellect, setting an example of deliberation.

Speaking in tribute to Justice Scalia after his 2016 death, Justice Ginsburg noted the value of their legal disagreements: 鈥淲hen I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots 鈥� the 鈥榓pplesauce鈥� and 鈥榓rgle bargle鈥� 鈥� and gave me just what I needed to strengthen the majority opinion.鈥� She also endorsed a warning by former Chief Justice William Rehnquist that judges should act as referees and not cast their decisions to favor 鈥渢he home court crowd.鈥�

Representative democracy is not just a matter of determining a majority鈥檚 interests and then acting on them. Madison also expected governing bodies to refine the views of voters and achieve 鈥渢he cool and deliberate sense of the community.鈥� Wisdom and virtue are brought to light through reason and listening. Such a commitment to high-minded principles and fairness would provide a healing standard now as America finds itself at a critical turn.