the only presidential inauguration i<u+2019>ve attended was bill clinton<u+2019>s first, on jan. 20, 1993. i took two spare tickets from the office, and brought my 7-year-old daughter, bundled against the cold like a little abominable snowman and old enough, i figured, for a civics lesson. these were not v.i.p. seats, and we were far back on the national mall, the proceedings barely visible. what i remember most vividly was what occurred immediately after the ceremony<u+2019>s conclusion. a helicopter took off noisily from somewhere near the capitol. i wasn<u+2019>t sure at first what was happening, but word passed through the crowd that it was marine one, carrying away the now ex-president george h. w. bush and his wife, barbara. where were they headed <u+2014> kennebunkport? houston? the destination didn<u+2019>t matter. the helicopter receding into the winter sky was a richly evocative symbol, power transferring peacefully before our eyes from the defeated candidate to the victorious one, the old president to the new. i told my daughter: this is how democracy works. that image came to mind last week during the third presidential debate. i watched the debate on a hotel television in the company of fellow participants in a conference i was attending. all were lawyers. as the debate proceeded, the group<u+2019>s attention occasionally drifted, and we chatted a bit. but at donald trump<u+2019>s refusal to say that he would abide by the election results, everyone snapped to attention. someone had to break the stunned silence, so as the only one in the room with journalism experience, it fell to me to state the obvious: <u+201c>that<u+2019>s the headline.<u+201d> during this excruciating year, i<u+2019>ve refrained from writing about the election, content to leave the subject to columnists for whom politics is central to their mandate. but law is central to mine, and since this is my last column before election day, i will use it to reflect on the challenge that this political season has posed to the rule of law. what do i mean by that phrase? the rule of law isn<u+2019>t readily reduced to a definition; we know it when we see it. it is both a process and an end state: the product not of a list of mandates but of ingrained habits, a collective turn of mind, shared expectations about how a civil society organizes its affairs and resolves its conflicts. we know that rules alone don<u+2019>t suffice to create or maintain a rule of law; some of the world<u+2019>s more odious governments have looked beneficent on paper. the rule of law provides confidence that what is true today will still be true tomorrow. it undergirds the resilience necessary to absorb the inevitable shocks any political system faces. resilience takes a long time to grow. the european <u+201c>unity<u+201d> now fracturing under 21st century strain is a mid-20th century artifact. that<u+2019>s not very much time. in the united states, we have thought, smugly, that we have all the time in the world. maybe we don<u+2019>t. consider the republican-controlled senate<u+2019>s response to president obama<u+2019>s nomination of merrick garland to the supreme court, a nomination now nearly eight months old. having vowed to prevent president obama from filling the vacancy created by justice antonin scalia<u+2019>s death, republican senators have refused to schedule a hearing for judge garland, the distinguished chief judge of a major federal appeals court <u+2014> or, with a few exceptions, even to meet with him and shake his hand. ten days ago, senator john mccain raised the stakes, vowing that republicans would block not only this but any supreme court nomination made in the future by a president hillary clinton. <u+201c>i promise you that we will be united against any supreme court nominee that hillary clinton, if she were president, would put up,<u+201d> the arizona republican declared in a radio interview. what was frightening about senator mccain<u+2019>s statement wasn<u+2019>t that he said it. after all, politicians say nutty things all the time. what scared me was that for a few minutes after i first heard about it, it actually seemed plausible that it could happen <u+2014> in other words, that the norms of political behavior have so ruptured that a respected member of the senate, his party<u+2019>s former presidential candidate, might actually have the will and maybe even the power to blockade the supreme court against an incursion by anyone nominated by a democratic president. senator mccain <u+2014> or, more precisely, a staff member speaking on his behalf <u+2014> quickly backed off, and senator charles grassley, the iowa republican who heads the judiciary committee, said in response that the senate <u+201c>can<u+2019>t just simply stonewall<u+201d> but rather had the responsibility to <u+201c>vet<u+201d> a president<u+2019>s nominees. i<u+2019>m not sure what that means. maybe it means that the tattered thread of a norm by which the confirmation process is hanging is at least sufficient to require the republicans to say that, of course, they won<u+2019>t do the very thing that they will do, if they can call it by a different name and bring it off. it<u+2019>s important to understand just how far from the norm the current situation has descended. did the titanic battle that led to the defeat of robert h. bork, president ronald reagan<u+2019>s supreme court nominee, open the door to this kind of behavior? you often hear such a claim, but the fact is that no, it did not. the bork battle remains the outlier, not the standard. judge bork, let<u+2019>s not forget, got a hearing, a committee vote, and a floor vote. months after defeating the bork nomination by a bipartisan vote of 58 opposed to 42 in favor, the democratic-controlled senate voted 97 to 0, a month into the 1988 presidential election year, to confirm anthony m. kennedy to the seat judge bork was to have filled. president bill clinton<u+2019>s two supreme court nominees, ruth bader ginsburg in 1993 and stephen g. breyer the next year, were confirmed by votes of 96 to 3 and 87 to 9. it is only by a distorted view of history that the bork battle can be said to have ushered in or authorized flat-out obstruction of a supreme court nomination. republican obstruction of president obama<u+2019>s nominations to the lower federal courts is equally ahistoric. of the president<u+2019>s 49 pending nominations, 38 have been waiting even longer than merrick garland for a vote. according to figures compiled by the brookings institution, there is nothing normal about the near-shutdown that has existed since republicans took control of the senate in january 2015. since then, the senate has confirmed 29 percent of president obama<u+2019>s nominees to the federal district and circuit courts. (note that until recently, district court nominations were considered noncontroversial and were usually confirmed at a rate of nearly 100 percent.) the brookings study compared confirmation rates in other presidential cycles, looking at what has happened in the period from january of a president<u+2019>s seventh year in office until the end of the eighth-year summer recess. in 1987-88 (with ronald reagan in the white house and democrats in control of the senate) the confirmation rate was 70 percent; in 1999-2000, it was 65 percent; and in 2007-08 it was 59 percent. that puts this cycle<u+2019>s 29 percent in perspective. are the federal courts disabled by the current vacancy rate of slightly over 10 percent? no, not yet. senior judges, those who are semiretired and usually carry less than a full load of cases, are picking up some of the slack. but the federal court system itself has identified 36 courts as suffering from <u+201c> judicial emergencies ,<u+201d> defined by the ratio between the number of cases reaching a court and the number of judges available to decide them. and i<u+2019>ve heard plenty of anecdotal evidence to suggest that highly qualified lawyers are turning down judicial appointments rather than put their law practice on ice for a year or more on the diminishing chance that they might eventually be confirmed. this is an under-the-radar brain drain that can hurt the entire system in the long run. it<u+2019>s one of the dangers that lie ahead if what<u+2019>s happened during this corrosive election year becomes accepted as the new normal. i<u+2019>ll end with where i began, with the graceful departure of president george h. w. bush. before he left the white house on inauguration morning, president bush went to the oval office and left on the desk a handwritten note for his successor. this in part is what it said: dear bill, when i walked into this office just now, i felt the same sense of wonder and respect that i felt four years ago. i know you will feel that, too. i wish you great happiness here <u+2026> you will be our president when you read this note. i wish you well. i wish your family well. your success is now our country<u+2019>s success. i am rooting hard for you. good luck. george this election day, good luck to us all. correction: october 27, 2016 an earlier version of this essay misstated the chronology of nominations to the supreme court. the two nominees after robert h. bork were anthony m. kennedy and david h. souter, not ruth bader ginsburg and stephen g. breyer, who were nominated later by president bill clinton. follow the new york times opinion section on facebook and twitter (@nytopinion), and sign up for the opinion today newsletter . follow the new york times opinion section on facebook and twitter (@nytopinion), and sign up for the opinion today newsletter .
the corrosive election and the new abnormal
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