Last Thursday, hours after the Senate voted to confirm Judge Katanji Brown Jackson’s nomination to the Supreme Court, Sen. Lindsey Graham (R-S.C.) tweeted: “The game has changed. Remember Amy Coney Barrett. Remember Brett Kavanaugh. I do.” Graham had already gone out of his way to connect his vote to grievances of the past and future threats.
More than opposition to a particular judge, Graham’s remarks offered new grounds to worry about the eroding infrastructure of American democracy.
Graham bemoaned what he saw as the mistreatment of a Republican judicial nominee, Janice Rogers Brown, a Black woman who he said was blocked simply because she was a conservative. And, looking to the future he promised retribution: “I want [Democrats] to know right now the process you started to go to a simple majority vote is going to rear its head here pretty soon where we’re in charge.”
“If we were in charge,” he said, “she would not have been before this committee.” Do Mitch McConnell and Merrick Garland circa 2016 come to mind?
Graham was channeling the politics of spite also displayed by his colleagues, Sens. Ted Cruz (R-Texas), Tom Cotton (R-Ark.) and Josh Hawley (R-Mo.) who made Judge Jackson’s hearings an occasion to resurrect alleged injuries done to previous Republican judicial nominees, like Miguel Estrada and Brett Kavanaugh.
Rather than finding some minimal common ground, as Sens. Mitt Romney (R-Utah), Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) have done, Graham and the others prefer to foment division to bolster their presidential ambitions.
On the Senate floor, Sen. Cotton said — in effect — that the nation’s first black woman to be nominated to the high court was in league with terrorists, suggesting that in another era she might have gone to Nuremberg to defend Nazis.
More important for present purposes is that Republican Senators like Cotton and Graham do not understand the “originalist” ideas of what the founders and true conservatives knew to be necessary to preserve a republic.
Those who led the American revolution and wrote the Constitution were readers of French Baron de Montesquieu, and particularly of his Spirit of the Laws. Montesquieu wrote that leaders in a Republic need what he called “political virtue” — “love of the Republic.” It “limits ambition to the sole desire, to the sole happiness, of doing greater services to our country than the rest of our fellow citizens.”
In the words of 20th century intellectual Irving Kristol, whom the New York Times has called “the godfather of modern conservatism,” Montesquieu’s “political virtue” meant “curbing one’s passions and moderating one’s opinions in order to achieve a large consensus that will ensure domestic tranquility.”
Making every effort to preserve common ground is basic to preserving a democratic republic.
Indeed, that was the message that Abraham Lincoln sought to send in his First Inaugural Address on the eve of the Civil War: “We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection.”
“The mystic chords of memory,” Lincoln said, “stretching from every battlefield, and patriot grave, to every living heart and hearthstone, all over this broad land, will yet swell the chorus of the Union.”
Democracy requires that public memory turn away from spite, that losses not become grievances, and that when losers get power they don’t use it to carry on a vendetta. As Mark Twain put it: “Anger is an acid that can do more harm to the vessel in which it is stored than to anything on which it is poured.”
Yet that is exactly where Cotton’s invective and Graham’s threats would lead — to the further corrosion of democracy and any semblance of a unified nation. They seek to use their base’s grievance at having lost power in 2020 as a “Lost Cause” on which to build their hopes for a return to personal power.
It was no accident that on Jan. 6, insurrectionists turned to another “Lost Cause” when they carried a monstrous Confederate flag into the Capitol’s Statuary Hall. Nor is it an accident that Republicans like Cotton and Graham chose a black woman on whom to stake their claim for vengeance.
As Yale Civil War historian David Blight has said, “At the heart of a lost cause . . . is its capacity to turn itself into a victory story. The Confederate Lost Cause really did that: By the 1890s, it became the story of victory over Reconstruction.”
Ignoring the wisdom of Montesquieu, Sen. Graham used a lost cause narrative to keep his feet firmly planted in the soil of spite and resentment, turning opponents into enemies, promising to make anger and recrimination a continuing part of the daily business of our national leaders.
Such modern grievance tales foretell more gridlock and dysfunction in Washington, D.C.
They also teach a bitter lesson to citizens. As Justice Louis Brandeis once noted: “Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.”
At a time when this nation confronts grave challenges on every front, it needs a lesson of hope and the kind of fair fighting on which democracy depends. Not only did Justice Jackson deserve better, so do all those whom Sen. Graham and the Republican presidential aspirants in the U.S. Senate want to lead.
NOTE: This post has been updated from the original to correct the date of Merrick Garland’s nomination.
Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College. Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.