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 greed and partisanship.
As many have almost tediously noted, the irony of this two-part drama is that both seats were occupied by people who overcame the very rancor McConnell hopes to exploit. Ruth Bader Ginsburg and Antonin Scalia were famously good friends, one of Washington’s storied odd couples; they went to the opera together, they spent New Year’s Eve together, they once spent time together atop an elephant.
But 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 today.
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? And how many would you say voted to confirm Scalia, hero of the Federalist Society, dreaded foe of progressives?
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: Strom Thurmond, who once ran for president as a Dixiecrat supporting segregation; and McConnell. Among those who voted for Scalia: Joe Biden. Also Ted Kennedy, at the time the party’s standard-bearer.
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 news of Ginsburg’s death spread, one of Scalia’s sons shared a story about how his father once bought her roses on her birthday. When one of Scalia’s former clerks asked 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 pin the not-too-distant past, ideological differences weren’t viewed as moral defects.
At times Scalia wrote pitiless opinions. But Ginsburg chose to not take them personally, and sometimes viewed them appreciatively. 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 quickly so that she might better reckon with it in her majority opinion. “He absolutely ruined my weekend,” she told Irin Carmon, co-author of “Notorious RBG,” “but my opinion is ever so much better because of his stinging dissent.”
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).
Of course, one year after Scalia was confirmed, the Senate got embroiled in an operatic feud over the nomination of Robert Bork, 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 views that attracted Ronald Reagan to him in the first place – that Bork’s nomination was a provocation.
In 2013, I interviewed Scalia for New York magazine, and was stunned to discover that even a Supreme Court justice had been swallowed up by the populist tide: He told me he got most of his news from talk radio. Two years later, in his dissenting opinion on Obergefell v. Hodges, which deemed same-sex marriage a constitutional right, Scalia railed against the disproportionate representation of coastal elites on the bench. 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 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 may be the ultimate purple state.
Jennifer Senior is a New York Times columnist.