I recently listened to a talk by the former Chief Rabbi of London, Lord Jonathan Sacks.  Rabbi Sacks is an internationally renowned speaker, scholar and religious leader. In general, I am reluctant to use someone from the United Kingdom (that whole American revolution thing), let alone a Rabbi (the Church & State thing), as a segue to a discussion of American democracy and politics.  However, his talk “Faith & Insecurity”  triggered some thoughts about what’s next after the sad death of Supreme Court Justice Ruth Bader Ginsburg.

I won’t go into deep details about the talk itself.  The fundamental argument is that the way we get through times of insecurity is with faith.  This is not because faith brings certainty, but because faith allows us to believe that we will get through “this” whatever “this” happens to be.  A fundamental article of faith is trusting in “something” enough to believe that eventually the chaos and uncertainty of today will end.   Without it, according to Rabbi Sacks, all we are left with is chaos and uncertainty.

As Rabbi Sacks points out, for most people, the most damaging part of COVID-19 is insecurity and uncertainty.  We can’t plan for anything because we simply don’t know what is going to happen next.  Everything is up in the air and everything is up for grabs.  Rabbi Sacks didn’t say it; so, I will add that the uncertainty and chaos of COVID-19 is just a regular Tuesday in the Trump administration, that thrives and survives almost entirely on chaos and uncertainty.

Now we have the death of Ruth Bader Ginsburg to add to the Bingo board of 2020 disasters.  The debate over how and whether to replace Justice Ginsberg died a quick death when even Senator Mitt Romney declined to wait until after the election. It seems clear that Donald Trump will nominate, and Mitch McConnell will confirm a new supreme court justice before the new President is sworn in.

The mental gymnastics of Senators Lindsey Graham and Ted Cruz aside, it is impossible to claim that appointing someone prior to the election is fair, just or needed. This is especially true given the horrific treatment Obama nominee Merrick Garland got in 2016 from among others… Lindsay Graham and Ted Cruz.  Some people point to other nominating processes that took place closer to the election than this one.  But they often fail to mention that to do that you have to go back to 1864 when Salmon Chase replaced Roger Taney, a slave owner and author of the Dred Scot decision.  It is, however, possible and very true to claim, as Mitch McConnell does, that elections have consequences and sometimes those consequences are unfair, unjust and unnecessary.   You have to give that to the Turtle.

Faith and confidence in the institutions and processes of government have been (often rightly) under attack since the Vietnam war era. However, the seeds of this supreme court mess go back much farther than 2016 and Merrick Garland. Back in 2013, Democratic Senator Harry Reid did away with the filibuster for non-Supreme Court judges in frustration at not being able to get Obama’s judicial appointment through.   Just four years later, the Republicans would go fully nuclear and get rid of the filibuster for Supreme Court nominees. And here we are.  While it easy to blame the Republicans (they started it!!!), Democrats threw a punch or two along the way.   As Duke Political Scientist Georg Vanberg said back in 2013,

“What we witnessed yesterday may only be an indication of a broader reality that goes beyond nomination fights.  The fact that it no longer makes sense for the majority to abide by an arrangement that limited its own powers in this area may indicate at norms of restraint — of which the filibuster in nominations was just one visible example — may be breaking down more generally in the Senate. The Senate may be on its way to becoming a less consensual and more majority-dominated chamber in general, and thus come to resemble the House of Representatives much more.

While we can argue all day as to the why, it seems to me that underlying this and the other school yard brawls we have in Congress is a lack of faith.  The Senators lack faith in the procedures and processes of the of the Senate.  The filibuster might have worked and protected everyone back in the day, but by 2013 and certainly in 2017 Senators no longer believed it really served their purposes.  They also lost faith in themselves.  Specifically, they lost faith in their own ability to use the filibuster judiciously and ideally rarely.  Both sides lost faith that the other side would or could play fair.

Once the Senators (and let’s be honest most people) lost faith in the institutions and processes of government we have seen insecurity, uncertainty and often chaos start to rise  This lack of faith extends to other policy options floating around.  The electoral college doesn’t give us the result we want?  Let’s get rid of it!!  A Nation of Immigrants and that huddled masses thing?  Naw… that can’t work anymore. Let’s build a wall.  Or more to the direct point at hand… the current system gives the other side a 6-3 majority on the Supreme Court? Let’s pack the court with more justices.   Or on the other side… a majority of 5-3 on the court?  Can’t risk it, must make sure Roe v. Wade goes away, got to vote our side in NOW.

It may be too late to bring back faith to the institutions of government.  It certainly won’t happen with Trump or McConnell in charge.  But until we find a way to have faith in something, quite frankly anything, we will have chaos in most things.  The question is what will that be?

I can already hear Republicans say, “The people, I have faith in the people” and I can already hear Democrats say “You are right, we need to have faith in government”.  And we are off to the races again with sides of the argument already picked.

I don’t have an answer, but maybe for all its faults and contradictions, the hope and faith that we can actually do better together is a good place to start…

We the People, in Order to form a more Perfect Union….

Matt Hale

Seton Hall University