On April 6th, in the year 43 BC, at the gates of Thapsus, Gaius Julius Caesar broke the Optimate forces of Scipio and Cato, ending the Roman Republic that stood a thousand years, soon after declaring himself dictator in perpetuity.
2060 years later to the day, in an ominous twist of poetic irony, Republican Majority Leader Mitch McConnell, while certainly no Caesar, also ended a Republic by changing the Senate rules for the number of votes necessary for confirming lifetime appointments. The so-called “Nuclear Option”.
This allows any party in control to appoint by simple majority, for life, Justices of the Supreme Court. To put this into historical context, Justice William O Douglas, appointed by Franklin D Roosevelt in 1939, served 36 years on the bench before retiring in 1975. He influenced the law of the land through six Presidencies and three wars. His replacement, Justice John Paul Stevens served 34 years, before retiring in 2010. 70 years of judicial review by two men.
In order to ensure that the Constitution of the United States of America is the supreme rule of law, impartial adjudicators appointed to the Supreme Court, subject not to the current politics of the time, but to the interpretation of the Founder’s intentions must have unimpeachable lifetime tenure. But what becomes of the responsibility of the Judicial check on Executive power if that impartial certitude cannot be guaranteed by a minority dissent?
To be fair, in 2013, it was the Democrats under Harry Reid who first stuck their toes in these waters by changing the same rules for cabinet appointments. Cabinet appointments serve “at the pleasure of the President”, which means they can be dismissed upon the whims of the executive in office. While this of itself was not the blow to the American implementation of a democratic republic that this most recent change presents, it certainly set the stage and precedent Senator McConnell needed to sell this dramatic shift in governance. The issue here isn’t which party is currently in power, but that a single party holds all the power.
President George Washington, who reportedly thought of himself as a modern Cato the Younger, feared the establishment of a single-party state, and voluntarily removed himself from consideration for the nomination of a third term, saying in his final address:
The common and continual mischiefs [sic] of the spirit of party are sufficient to make it the interest and the duty of a wise people to discourage and restrain it. It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passion.”