A judicial litmus test

The fight over the nomination of a new Supreme Court justice should separate the opposition from the “resistance,” which is why Jewish groups need to stay out of it.

The Supreme Court of the United States. Credit: Wikimedia Commons.
The Supreme Court of the United States. Credit: Wikimedia Commons.
Jonathan S. Tobin
Jonathan S. Tobin is editor-in-chief of JNS (Jewish News Syndicate). Follow him @jonathans_tobin.

Americans are more divided today than they have been at any time in living memory. The fault lines in society generally have to do with opinions about U.S. President Donald Trump and his character, as well as his statements, Twitter account and policies. While every recent president has inspired a derangement syndrome among critics (with each succeeding one being worse than the last), Trump’s unorthodox and often unseemly manner has inspired not merely the usual partisan anger, but a conviction on the part of many Americans that their liberties are truly in danger.

The U.S. Supreme Court. Credit: Wikimedia Commons.

Recent controversies over immigration policy have heightened that sense of panic among Trump’s critics. But it’s likely that this sort of talk will grow in the coming months as the nation’s attention is riveted on the upcoming debate about choosing a replacement for U.S. Supreme Court Justice Anthony Kennedy, who announced his retirement this week. Liberals are treating the likelihood that the court’s current conservative majority will be both strengthened and set in place for the foreseeable future as a disaster and see the battle over confirming anyone Trump chooses as a political Armageddon.

But while the temptation for Jewish organizations to take sides will be overwhelming, this is a moment for prudence on the part of those who wish to speak for American Jewry. Even if most Jews sympathize with the efforts of Democrats to stop the confirmation of Kennedy’s replacement, those who do so need to think about the way they will conduct that opposition. While much of the argument about Trump is being treated as one between good and evil, rather than just a normal political disagreement, those who engage in this sort of discourse about the future of the court are doing a grave disservice to the country. To do so in the name of the Jewish community would not only be profoundly offensive but also undermine the values they claim to be upholding.

The passion of the arguments about the court will be a function of the high stakes involved in this battle. Justice Kennedy’s role as the one swing vote on a court that is otherwise usually divided between four liberals and four conservatives has granted him great power. He, more than anyone else, was responsible for legalizing gay marriage and allowing the Roe v. Wade decision on abortion rights to survive many challenges over the years. It also meant that his vote protected the religious liberty of conservatives in the recent case about the right of a Christian baker to refuse to bake a cake for a gay wedding and the right of a business to refuse to pay for insurance coverage for practices that violated the faith of the owners. His vote also ensured the rights of groups and individuals to political speech in the Citizens United case that ended many restrictions on campaign contributions.

That makes the identity of his successor on the court crucial to the future of American law. A fifth vote, especially if it’s one that is more consistently lined up with the opinions of the other four conservative justices, will mean decisions on First Amendment cases, among others that will dismay most liberals.

But though this is a debate with incalculable consequences, it’s not one that should be conducted with the same sort of virulence that we’ve been hearing about Trump, in which the president and the “resistance” to his administration engage in attacks that seek to delegitimize their opponents.

Though much hangs on the outcome of the upcoming confirmation debate, the president’s opponents would do well to remember that on the question of judicial appointments, Trump has behaved the same way any Republican would have done. Trump has trashed tradition and norms about so many aspects of his presidency, but when it comes to judges, his picks have been mainstream conservatives.

That means that the debate we’re about to have about the future of the court is one we would have had even if Trump had stayed out of politics. Therefore, it is merely a conventional tussle between Republicans and Democrats, conservatives and liberals—and not between the forces of light and darkness—no matter which side you support.

One of the essential elements of democracy is the willingness to concede that while the other side may be wrong, it still has the right to have its way if it wins elections. Like it or not, that’s what the Republicans did in 2014 and 2016, when they won control of first the Senate and then the presidency. That doesn’t preclude spirited, even angry debate. But this is precisely the moment when those who have been throwing around inappropriate and deeply offensive comparisons to the Nazis and the Holocaust when discussing immigration or the nature of the Trump presidency need to pipe down.

If American Jews seem just as interested, if not more so, in expressing such sentiments as anyone else, then it’s hardly a surprise. As a demographic group that is overwhelmingly politically liberal and which is second only to African-Americans with respect to loyalty to the Democratic Party, it’s expected that most Jews and their leading groups will line up against Trump on many issues, even if they should always be careful (as they often are not) to separate partisan or ideological interests from those of the Jewish community.

One side of our political divide may be angry and frustrated right now about the future of the court. The coming debate about the constitution is one in which both sides have legitimate arguments rooted in history and law. To treat it as one between good and evil, in which it is permissible to do or say anything to besmirch opponents, is to undermine the fabric of democracy, not to preserve it. No group has a greater historical stake in respect for the rule of law and religious liberty than the Jews. Those who claim to speak in their name must step back from the brink before plunging it into a fight in which the only real loser will be a civil society.

Jonathan S. Tobin is editor in chief of JNS — Jewish News Syndicate. Follow him on Twitter at: @jonathans_tobin.

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