For the second time in five years, a sitting Supreme Court justice has died, and for the second time in five years, Sen. Mitch McConnell has befouled the process to replace that justice with his signature blend of fresh greed and rancid partisanship. A Ruth-less court, answered with ruthlessness.
As many have endlessly — almost tediously — noted, the irony of this two-part drama is that both seats were occupied by individuals who overcame the very rancor that McConnell hopes to exploit. Ruth Bader Ginsburg and Antonin Scalia were famously good friends, one of Washington’s storied odd couples; by now, many of the details of their two-headed vaudeville act are well known — they went to the opera together, they spent New Year’s Eve together, they once spent time together atop an elephant.
But me? I can’t stop thinking about the civil, uncomplicated nature of Ginsburg and Scalia’s own appointments to the bench. They were supported with a kind of bipartisan enthusiasm that’s unthinkable in today’s gladiatorial politics.
If you were to guess, how many senators would you say voted to confirm Ginsburg, whose dissent jabots would go on to launch a thousand mugs, tattoos and Halloween costumes, whose initials would become a liberal feminist supersignifier? And how many would you say voted to confirm Scalia, hero of the Federalist Society, defender of originalism, dreaded foe of progressive argle-bargle?
Answers:
Ginsburg was confirmed in 1993 by a vote of 96-3.
Scalia was confirmed in 1986 by a vote of 98-0.
Among those who voted for Ginsburg: Bob Dole, who would be the Republican nominee for president three years later; Strom Thurmond, who once ran for president as a Dixiecrat supporting segregation; and, yes, Mitch McConnell.
Among those who voted for Scalia: Al Gore, John Kerry and Joe Biden, all of whom would go on to become the Democratic Party’s nominee for president. Also Ted Kennedy, at the time the party’s standard-bearer for approximately forever.
Under such circumstances, is it any wonder that bipartisan friendships weren’t just possible but even typical?
It has sometimes been suggested that the media loved the friendship between Ginsburg and Scalia even more than the justices themselves. But it was quite real. As the awful news of Ginsburg’s death spread, one of Scalia’s sons shared a story I’d never heard before, about how his father once bought her two dozen roses on her birthday. When one of Scalia’s former clerks, Jeffrey Sutton, asked him why, given that she never gave him the vote he needed on a 5-4 case of any significance, Scalia replied: “Some things are more important than votes.”
It’s hard to remember sometimes that political disagreements, in the not-too-distant past, weren’t necessarily cause to retreat into our respective corners, and that ideological differences weren’t viewed as moral defects.
This is not to say that Scalia did not write pitiless opinions, at times so searing they could grill their own steak. But Ginsburg chose to not take them personally, and sometimes viewed them appreciatively, of all things. In the 1996 case, U.S. v. Virginia, which finally allowed women to attend Virginia Military Institute, Scalia made a point of sending Ginsburg his dissent as quickly as possible, so that she might better reckon with it in her majority opinion.
“He absolutely ruined my weekend,” Ginsburg told Irin Carmon, co-author of “Notorious RBG,” “but my opinion is ever so much better because of his stinging dissent.”
It is not a surprise that before the political got viciously personal, our democratic institutions functioned better. As recently as a decade ago, the Senate was confirming Supreme Court nominees with some measure of bipartisan good will. The vote for Elena Kagan in 2010 was 63-37 (Lindsey Graham and four other Republicans, including Susan Collins, voted yea). The vote for Sonia Sotomayor the year before was 68-31 (including nine Republicans that time).
Of course, it’s important not to idealize the recent past either. One year after Scalia was confirmed, the Senate got embroiled in an operatic feud over the nomination of Robert Bork to the Supreme Court, where the nominee ultimately lost in a vote of 58-42. The Republicans claimed, with not a little justification, that this was the first time a jurist was rejected for his views, rather than a lack of qualifications; the Democrats claimed, with not a little justification, that it was precisely those inflammatory views that attracted Ronald Reagan to him in the first place — that Bork’s nomination itself was a provocation.
In 2000, Scalia violated his own beliefs about the sanctity of states' rights in Bush v. Gore, helping to end the Florida recount. (To anyone who challenged his decision, he’d simply say, “Get over it.”) In 2013, I interviewed Scalia for New York magazine, and I remember being stunned to discover that even a Supreme Court justice had been swallowed up by the populist tide: He told me point blank that he got most of his news from talk radio.
Two years later, in his dissenting opinion on Obergefell v. Hodges, the landmark decision that deemed same-sex marriage a constitutional right, Scalia railed against the disproportionate representation of coastal elites on the bench, pointedly adding it contained not a single evangelical Christian or Protestant. (He then tossed in a disparaging line about hippies for good measure.) It is quite easy to imagine President Donald Trump saying the same thing at one of his rallies.
Yet still, the friendship between Ginsburg and Scalia persisted. Just as powerful as their shared love of opera and jurisprudence may have been their upbringing in the outer boroughs of New York. Scalia was a conservative from a liberal metropolis; Ginsburg was a liberal who worked, increasingly, in a conservative court. It’s a good reminder that heterodox environments are essential to keeping our common humanity top of mind. The Supreme Court is a family of nine whether it wants to be or not; it has no choice if it wants to function. The place may be the ultimate purple state.
Jennifer Senior
Jennifer Senior is an Op-Ed columnist for The New York Times.