Donald Trump and Ruth Bader Ginsburg

How low can American politics go? We’re about to find out.

Last Friday the inimitable Ruth Bader Ginsburg finally lost her long struggle with cancer. And immediately, the tributes to her brilliant career were drowned out by the clamour of politicians squabbling over the process of appointing her replacement to the US Supreme Court.

On paper at least, the process is straightforward. The president nominates a candidate for the vacancy, the Senate investigates the candidate, and then the Senate votes (by simple majority) on the confirmation of the candidate.

The problem is that process wasn’t followed in March 2016 when then-president Barack Obama nominated Merrick Garland to the Supreme Court to replace Justice Antonin Scalia who had died in February.

The Republican-controlled Senate declined to even consider the nomination on the grounds that it was took close to the 2016 presidential election — at that point still eight months away.

Senate Majority Leader Mitch McConnell had already made his position very clear on the day that Scalia died:

“The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”

A similar view was expressed by numerous Republicans. (See here for an exhaustive list of such self-righteous declarations.)

Given this history, surely Republicans could never entertain a nomination from President Donald Trump just six weeks before the next presidential election?

Of course they can.

Mitch McConnell, still the Senate majority leader, released a statement on the day of RBG’s death.

He said that “President Trump’s nominee will receive a vote on the floor of the United States Senate”. What happened to “the American people should have a voice in the selection of their next Supreme Court justice”?

The hypocrisy is staggering. McConnell attempted to justify the unjustifiable on a specious argument that in 2016 the Senate majority had been elected “to check and balance” a president in his second term.

Perhaps the most egregious backflip is from Senator Lindsey Graham, the Republican chair of the Senate Judiciary Committee who will oversee any confirmation hearing. In 2016 he could not have been clearer:

“I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, ‘Let’s let the next president, whoever it might be, make that nomination’.”

On Saturday Graham tweeted that he will support President Trump “in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg”.

These politicians have no shame.

There is already talk that if Trump’s nomination is successful, but the Democrats win the presidency and control of the Senate, they will retaliate by expanding the number of Supreme Court justices, “stacking” the court in their favour.

The sad reality is that US politics are now toxic. There is no room for compromise or co-operation. There are no mistruths that cannot be spoken; no norms or conventions that cannot be broken to achieve partisan political goals.

But there is a high price to pay for such behaviour. According to the pollster Gallup, confidence in the US Congress has declined from 42% in 1973 to just 13% in 2020.

Democracy is in trouble when citizens hold their politicians in such contempt.

There are lessons here for politicians in liberal democracies like Australia. They must resist the temptation to follow the path taken by their American counterparts. They must not sacrifice their principles for short-term political gain. Ethics matter.

Australian politicians have never been saints. But there is evidence that their standards are slipping.

In the lead-up to the 2016 federal election, the Australian Labor Party ran what came to be known as the “Mediscare” campaign. This was intended to scare voters off voting for the Coalition by making them believe that the Coalition would somehow “privatise” the Medicare system. The campaign was unquestionably dishonest.

The Coalition expressed outrage over Mediscare in the 2016 election. But rather than retain the moral high ground for the 2019 election, it chose instead to take Labor’s low road.

The result was the “death tax” scare campaign. This was intended to scare voters off voting for the ALP by making them believe that an ALP government would bring in an inheritance tax. Like Mediscare, the Coalition’s death tax campaign was fundamentally dishonest.

The politicians behind both those campaigns knew exactly what they were doing. For them, the ends justified the means. This is what “win at all costs” politics looks like. Politicians who have no shame.

Former Queensland judge Tony Fitzgerald describes them as “‘whatever it takes’ politicians driven by self-interest and ideology”.

It must be obvious to Australia’s major political parties that US politics are deeply flawed; that hyper-partisanship and the absence of a moral compass are inconsistent with a healthy democracy.

We can only hope that they have the good sense to take a different path.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey

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