An Alternative Deal For The Senate Regarding SCOTUS

Just a quick thought here. In 1 Corinthians 9 Paul mentions several rights that he and other apostles and ministers have, such as the right of financial support from those one ministers to. In verse 12b Paul says “Nevertheless, we have not made use of this right; instead, we endure everything so that we will not hinder the gospel of Christ.”

There are various types of rights: natural rights and legal rights are the two most obvious contrasts. In 1 Corinthians 9 Paul is considering what we might call a Kingdom right (or a Christian liberty). In any case, the following may be said (though the range for each domain may be narrower in regards to natural rights).

(1) Exercising a right can be a good thing, but one is not obligated to exercise that right. In other words, if we were to exercise the right it would be good but whether we choose to exercise the right or not is adiaphora.

(2) Exercising a right can be a good thing and something one is morally obligated to exercise. Paul had Roman citizenship and this gave him certain legal rights.[1] If, hypothetically, Paul’s Roman citizenship gave him the right to perform some other natural duty then Paul would be obligated to make use of that right.

(3) Exercising a right can be a good thing and not exercising that right can be a greater good. Perhaps that sounds counter-intuitive. If one is obligated to always choose the greatest good then, for example, wouldn’t exercising a legal right at the expense of a greater good always be bad? Paul’s reasoning in 1 Corinthians 9 calls that into question. The simplest (and for my purposes quickest) solution is to introduce the supererogatory distinction. If the greater good in question is supererogatory, then not exercising one’s right can be a good without there being a moral obligation to not exercise one’s right.[2]

(4) Exercising a right can be a good thing and something one is morally obligated to refrain from exercising. Most obviously, this would occur when a legal right provides more latitude than natural duties. Thus, free speech grants us the right to lie but we have a natural duty to be honest.

From what I’ve seen, conservatives who have argued that Republican senators should make a deal with Democrat senators have attempted to suggest that (4) is in play. That is, Republican senators are morally obligated to make a deal with Democrats. Primarily their case for this rests upon Republican hypocrisy about not voting on a Supreme Court nominee in an election year.

That is, while Republicans have a legal right to vote on Amy Coney Barrett (ACB), they have a natural duty to not be hypocrites. But I think these conservatives have not given enough consideration to whether (2) might be in play and some relevant nuances regarding hypocrisy.

Let me briefly spell out how (2) might be in play and then nuance the hypocrisy charge. If we have a legal right and fulfilling a natural duty requires exercising that right, then we should exercise the legal right. But what if, at the same time, exercising that right happens to conflict with another natural duty: don’t be a hypocrite? This isn’t really a novel moral dilemma, insofar as moral dilemmas go. Moral principles often come into conflict in the real world. It’s merely a matter of considering which principle is the weightier one. Granted, adjudicating the issue may not be simple, but recognizing that two (or more) different principles are in play and that they need to be weighed should be obvious. But it seems that the conservative deal-proponents have overlooked the obvious consideration of the way in which a nominee like ACB may give everyone greater opportunity to fulfill their natural duties and, thus, the way in which confirming ACB may itself have a moral claim on senators. Instead, it is assumed that the general circumstance is like the first case — exercising the right to confirm is, all things being equal, adiaphora — and specifically, given the comments of Republican senators in the past, an instance of the fourth case. Thus, the only morally significant issue is hypocrisy.

But what of the hypocrisy issue? While this is certainly a morally significant issue, it’s more nuanced than deal-proponents have indicated (at least from what I’ve seen). Would it be hypocritical for “Republican senators” to vote on ACB? We should be able to see the problem with this level of analysis if we ask a more concrete question: would Mitt Romney be a hypocrite to vote on ACB? Obviously not. Romney wasn’t in the Senate at that time and, to my knowledge, never claimed that the Senate should never take a vote on a Supreme Court nominee in an election year. Specific senators made that claim, like Lindsey Graham. Thus, it’s Lindsey Graham who is subject to the charge and it’s far from obvious that his hypocrisy should be imputed to Mitt Romney, let alone all Republican senators.[3]

Thus, even if one has carefully considered the way in which confirming ACB may in itself have a moral claim that should be weighed against Graham’s prior comments and decided that the duty to not be hypocritical outweighs that claim, the first deal to consider should be between Republican senators. Did Lisa Murkowski and Susan Collins themselves make the claim that a Supreme Court nominee should never receive a vote in an election year? I don’t know, but let’s assume that they didn’t. In that case, they have no obligation to refrain from voting since there shouldn’t be any presumption that what Graham says binds Collins or vice versa.

Now I don’t know exactly which senators said things prior to RBG passing that would make them hypocritical to vote on ACB, but I do know Graham and Rubio are guilty and I’ve heard Cruz is too. In that case, there is nothing to lose if Graham, Rubio, and Cruz make a deal with other Republican senators like Murkowski and Collins to “trade places.” The former refrain from violating their word and the latter vote without hypocrisy. Of course, if it was more than Graham, Rubio, and Cruz then that would be a problem. But in that case I think the argument from (2) and in conjunction with what I’ve called “The Isgur Standard” still suggest that best choice is to vote on the nominee.[4][5]

[1] One legal right Paul capitalizes on is the ability to appeal his case to Caesar in Acts 25. Whether or not Paul had a moral obligation to appeal to Caesar isn’t certain. Paul’s immediate reasoning in exercising the right is probably to escape an assassination attempt or unfair trial back in Jerusalem. Other things being equal, one has a duty to preserve one’s life. Paul may have also seen an opportunity to preach Christianity not just in Rome, but before the emperor.

[2] I haven’t taken the time to look up any commentaries on 1 Corinthians to see how or whether this issue is tackled by theologians, but I offer this as a quick, prima facie solution.

[3] Arguably a better case could be made for imputation if the Senate majority leader, Mitch McConnell, had not made more nuanced claims about the Senate majority being controlled by the opposition party of the President.

[4] Notice that nothing I’ve said here hinges on the low-hanging fruit arguments of David French, Jonah Goldberg et al. about “raw power” or a consideration of what we can do without a consideration of what we should do. I may do a quick follow up post on how court packing is not analogous to voting on a Supreme court nominee in an election year.

[5] There is a further complication which should factor into our moral calculus here and that is the fact that senators have certain responsibilities to their constituents. Consider the following facts: Marco Rubio is my senator. I voted for Rubio, even though I didn’t vote for Trump, with one of my explicit concerns being judges. I didn’t endorse any claim that the senate should never vote on a Supreme Court nominee in an election year. It seems to me that Rubio is responsible to do that for which his constituents placed him in office, even if he says dumb things sometimes which his constituents don’t endorse and may morally implicate him personally.

Throwing half-baked ideas against the wall and seeing what sticks.