This graph shows the proportion of each president’s Supreme Court nominations who were confirmed as opposed to rejected, withdrawn, or postponed. I draw attention to the rocky record of the antebellum presidents, the very high confirmation percentage between 1900 and 1967, and the mixed story since then.

It’s often said that Robert Bork was the first nominee of modern times rejected on ideological grounds, not because of a scandal. Conservatives (rightly or wrongly) view that episode as the moment when a norm was broken, since 20th century presidents had been allowed to name candidates who met basic qualifications. Liberals now feel equally strongly about Merrick Garland, the first modern nominee not to receive a vote at all, even though he was clearly a moderate. If Democrats filibuster Neil Gorsuch and Republicans end the filibuster, that will be seen as a new stage. The new implicit rule will be: presidents can name Supreme Court nominees when a majority of the Senate chooses to concur, but otherwise the seat stays vacant. In general, we will expect vacancies to be filled when the Senate and White House belong to the same party, but otherwise to remain empty unless the two sides happen to be able to work out a win/win deal.

This trend could be taken as an example of the decline of norms and comity in Washington. I believe in the general truth of that story. However, I would interpret the changing norms for confirmation in a different way. From 1900 until around 1970, both national parties had conservative and liberal wings. Conservative Southern Democrats stood to the right of Republicans on social issues. Some Northern Republican Senators were genuine liberals. This meant that most presidents could assemble majority coalitions on important votes–not only nominations, but also landmark bills and budgets–regardless of which party controlled the majority. A Democrat would use party loyalty and intraparty horsetrading to line up most of his own caucus, adding liberal Republicans to reach a majority. A Republican would do just the reverse to win. As a result, the norm was not only that presidents got their way with Supreme Court nominations (absent scandals) but also that they drove national policy.

Once the parties polarized into left and right, that situation no longer applied. Since then, presidents have really only been able to govern domestically when their party has controlled Congress, although they have increasingly resorted to unilateral executive actions at other times. The only moments of effective governance, as envisioned by the Constitution, have occurred in 1980-82, 1992-4, 2003-6, and 2009-11. The rest of the time has seen stalemate or executive unilateralism.

For Supreme Court nominations, only the Senate matters. Since 1980, 11 justices have been confirmed while the Senate and presidency have been aligned, three (Kennedy, Souter, and Thomas) slipped through despite a hostile Senate, one (Miers) was withdrawn despite unified party control, and two (Bork and Garland) were blocked.

Going forward, I think it’s pretty much inevitable that presidents will get their Supreme Court nominees through when they have majorities in the Senate, and otherwise, they will be blocked. Merrick Garland deserved a vote but would have been defeated under this new norm. Trump gets Gorsuch and can fill other vacancies until he loses the Senate or his own reelection. Democrats should use the filibuster now, so that Republicans have to end it and the underlying rules are clarified. If Democrats win the Senate and White House in 2020, they should use majority votes to appoint strong liberals to the court.

I am not saying the new normal is acceptable, but I fail to see an alternative, and we might as well understand the stakes.

Data from the Senate. See also: is our constitutional order doomed?, are we seeing the fatal flaw of a presidential constitution?, and two perspectives on our political paralysis.

Sorrow everywhere. Slaughter everywhere. If babies
are not starving someplace, they are starving
somewhere else. With flies in their nostrils.
But we enjoy our lives because that’s what God wants.
Otherwise the mornings before summer dawn would not
be made so fine. The Bengal tiger would not
be fashioned so miraculously well. The poor women
at the fountain are laughing together between
the suffering they have known and the awfulness
in their future, smiling and laughing while somebody
in the village is very sick.

— From Jack Gilbert, “A Brief for the Defense.”

On Saturday, I ate my 50th birthday dinner with my beloved wife and younger daughter in a restaurant in Cambridge, MA. While we waited for the check, we heard about the protest at Logan Airport and decided to go. I then watched two of my favorite people stand against injustice in the company of a large and passionate band of our fellow citizens.

To say that I enjoyed my birthday evening seems wrong. It sounds a bit like saying, “The US Coast Guard turned the refugee-laden ship St Louis away from Miami in May 1939, and 254 of the passengers were soon murdered in the Holocaust, but I enjoyed standing on the dock with a ‘Let them in!’ sign.”

But there is another way of looking at these situations. Politics is often about cruelty and injustice. Sometimes the people who respond with optional political actions–like carrying signs in Logan’s Terminal E–are not directly at risk. We may nevertheless take satisfaction from our political action if we contribute, in some ultimate way, to a better world.

For one thing, we should draw satisfaction because that motivates more activity. If politics is mere sacrifice, everyone except the most direct victims (the ones with their backs to the wall) will drop out sooner or later. I think it’s wise for activists to advertise the emotional benefits of action.

More than that, we should take satisfaction from politics, even if others are suffering while we are safe, because consequential public action is part of a dignified life–an aspect of dignity too often denied to us by bureaucracies and markets. Hannah Arendt thought that the American Framers originally revolted in defense of their own private liberties, but they discovered, as they made the new republic together, that “no one could be called happy without his share in public happiness, that no one could be called free without his experience in public freedom, and that no one could be called either happy or free without participating, and having a share, in public business” (On Revolution,  p. 247). Lin-Manuel Miranda captures that feeling at the very end of Hamilton, when his hero sings, “I wrote some notes at the beginning of a song someone will sing for me. America, you great unfinished symphony, you sent for me. You let me make a difference.”

We shouldn’t wish for injustices so that we can make a difference. (Young-man Hamilton does–singing “God, I wish there was a war! / Then we could prove that we’re worth more /
Than anyone bargained for…”–but he outgrows that sentiment.) When, however, we are confronted with injustices that we did not choose, we may take some joy from rising up together with those we love:

For mighty were the auxiliars which then stood
Upon our side, we who were strong in love!
Bliss was it in that dawn to be alive.
[…]
Now was it that both found, the meek and lofty
Did both find, helpers to their heart’s desire,
And stuff at hand, plastic as they could wish;
Were called upon to exercise their skill,
Not in Utopia, subterranean fields,
Or some secreted island, Heaven knows where!
But in the very world, which is the world
Of all of us,–the place where in the end
We find our happiness, or not at all!

– Wordsworth, “The French Revolution“

See also: unhappiness and injustice are different problems ; you have a right and a responsibility to attend to your own happiness; notes on Hannah Arendt’s On Revolution; and Mill’s question: If you achieved justice, would you be happy?

Tickets are now available for Frontiers of Democracy, June 22-24. Frontiers is an annual conference hosted by the Jonathan M. Tisch College of Civic Life at Tufts University, with partners. This year’s theme is defending the frontiers of democracy against undemocratic, xenophobic, and illiberal trends around the world. Some of the time will be spent working with this framework, and others that take different approaches:

Purchase now to hold your place. Regular tickets cost $240, and there are discounts for current students and Tisch College’s Community partners. Alumni of the Summer Institute of Civic Studies attend free.

As always, the format of Frontiers is highly interactive; most of the concurrent sessions are “learning exchanges” rather than presentations or panels. We welcome proposals for learning exchanges for 2017. Please use this form to submit ideas.

Frontiers is public. It follows immediately after the Summer Institute of Civic Studies, a selective 2-week seminar for scholars, practitioners, and advanced graduate students that is capped at 20 participants. Applications for the Institute are being accepted now. Email me (peterlevine@tufts.edu) your resume, a graduate transcript if applicable, and a cover letter explaining your interest.