The Problem With Democrats

By GENE NICHOL

President Biden said recently he was confident his Supreme Court nominee would secure bi-partisan support:

“I’m not looking to make an ideological choice. I’m looking for someone to replace Justice Breyer with the same kind of capacity Judge Breyer had, with an open mind who understands the Constitution in a way consistent with mainstream interpretation.”

Who could argue with that? An ‘open mind,” a “Justice Breyer,” a “mainstreamer.”

Well …

It’s lousy and modestly unseemly, I realize, to say a word against the retiring. Good grace demands the bestowal of the gold watch and, then, the moving on. Unless, perhaps, a larger and continuing problem lurks in the balance.

Stephen Breyer is a good fellow. And given my odd career, I can even say he’s a congenial lunch guest — thoughtful, professorial, happily interested in a world of learning and culture outside the law. He’s a student of the intricacies – perhaps overly so. After all, he was an administrative law professor at Harvard.

But now let me speak the unforgivable. Stephen Breyer has been on the US Supreme Court for over a quarter century and, for my money, no modern justice has served so long and had so little impact on American constitutional law. I know some will vigorously disagree with that assessment, and disagree even more with having the boorishness to proclaim it. But upon his announced retirement, it was not uncommon, in professorial circles, to ask, can you think of any Breyer opinions that will be remembered?

Maybe I overstate. I sometimes do. But consider the last dozen or so retirements (or deaths) of Supreme Court justices. Folks like Ruth Bader Ginsburg, Antonin Scalia, Anthony Kennedy, Sandra Day O’Connor, William Rehnquist, John Paul Stevens, David Souter, Harry Blackmun, Byron White, Lewis Powell, Thurgood Marshall, William Brennan. Whether one agrees or disagrees with their respective legacies, the footprint is notably larger and decidedly more enduring.

I’m sure President Biden finds the purported Breyer tendency to quietly (and unsuccessfully) seek consensus appealing; and his disingenuous, self-serving assertions that all the justices simply struggle mightily to give meaning (apart from politics) to the constitution reassuring, but they are brutally misplaced on this Trumpist high court. With six, or at least five, zealously committed partisans on the tribunal, such “virtues” only aid and abet.

So why mention the unseemly? First, the times call for a jurist of clarion skill, vision and temperament. The US Supreme Court is now a democracy-threatening, partisan behemoth. A new member, no doubt, will be cast principally, for years to come, in the role of eloquent dissenter – explaining to the nation, and to history, the actions of her majority colleagues. This is, to understate, no time for a timid cobbler and patcher. Any justice Mitch McConnell or Susan Collins warms to will likely fail the test. They’re Kavanaugh folks.

Second, and maybe even more importantly, this notion of definingly accommodationist Democratic decision-making crushes us. For decades, Democratic hopefuls have explained, effectively, they’re just like Republicans, only not so mean. Vote for us, we’re not quite as bad as the other guys. But a diluted right-wing agenda is still a right-wing agenda. It’s no bragging right to be a weaker, paler, softer version of your adversaries.

This absence of actual commitment disserves most profoundly when a nation is undergoing a battle to secure its democratic foundations. We need a champion not a cordial teammate. Bill Clinton appointed two Supreme Court justices — Ruth Bader Ginsburg and Stephen Breyer. Biden sounds like he’s trying to replicate the wrong one.

Gene Nichol is Boyd Tinsley Distinguished Professor of Law at the University of North Carolina School of Law and in 2015 started the North Carolina Poverty Research Fund after the UNC Board of Governors closed the state-funded Poverty Center for publishing articles critical of the governor and General Assembly. 

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