by playwright Anthony Giardina
There are two lines in my play, The City of Conversation, that have taken on new resonance since the death of Supreme Court Justice Antonin Scalia and the ensuing battle over how exactly a replacement for him is going to find his or her way onto the Court. One of these two lines was always, essentially, a throwaway. In the second act, Colin, the son of Hester, the political doyenne at the center of the play, is working in support of Robert Bork’s nomination to the Court. It’s 1987, and the Bork fight is heating up, a strong resistance to Bork growing. In frustration, Colin says, “A President gets to pick his Supreme Court.”
The line has never gotten much of a response before the last week. Those with historical hindsight know that what Colin is saying isn’t invariably true. Reagan didn’t get to have Bork on the bench. Nor did he get Douglas Ginsberg (his next pick). Richard Nixon didn’t get Harold Carswell or Clement Haynsworth. Even LBJ didn’t get to have Abe Fortas as Chief Justice. But these recent nights, the line gets applause. An expression, no doubt, on the part of a liberal-leaning audience girding for the fight ahead. But that same audience might once have breathed a sigh of relief at the fact that a President didn’t get to “pick” Bork, Carswell or Haynsworth. So what exactly, I have to wonder, are they applauding?
The other line — the more predictable applause line — is one that Hester says toward the end of the play. She’s an old woman now, still smarting from wounds taken on in her long battles for women’s rights, African American rights, gay rights. Her justification to the grandson she lost as a result of these battles: “Who sits on the Supreme Court matters.”
We know that now in a way we didn’t always, at least not so acutely. Citizens United, gay marriage, the constantly threatened Obamacare, Roe v. Wade, the gutting of the Voting Rights Act: the repercussions of these decisions are in our face nearly all the time now.
But how a President “picks” a Supreme Court Justice, that’s the more complicated thing, and as pleased as I am at a line getting a strong audience response in my play, as much as I understand the frustration that applause rises out of, it still strikes me that there’s an irony here that should not go unremarked. Democratic politicians who once threatened filibusters against previous Court nominees (including the President and his would-be successor, Hilary Clinton) are now either apologetic about their past actions (the President) or dancing away from them (Hilary Clinton, when pressed on her threatened filibuster of Samuel Alito at a Nevada Town Hall last week). If Colin, in my play, were to say, “A President gets to have a vote on his Supreme Court nominee”, I’d welcome the applause. Bork got a vote; so did Clarence Thomas and Samuel Alito, in spite of the strong Democratic resistance to them. But if we’re applauding what Colin actually says, then we’re suggesting that what Teddy Kennedy and Ralph Neas and the Leadership Conference for Civil rights did back in 1987 to defeat the nomination of Bork was somehow wrong. I know that those of us on the Left don’t believe that, but precisely because we know these days how much “who sits on the Supreme Court matters” our current feelings aren’t subtle ones. Or measured ones. We’re hungry. We want Obama to name Scalia’s successor, and we want that name to be approved by the Senate. Let’s have that desire. But let’s not be unsubtle thinkers, and forget our own actions in the past to try and keep a President from “picking” his Supreme Court, and how justified those efforts were. In other words, let’s take a deep breath and hold the easy applause.
(Photos: The City of Conversation playwright Anthony Giardina, Caroline Hewitt, Margaret Colin and Michael Simpson in The City of Conversation at Arena Stage at the Mead Center for American Theater January 29-March 6, 2016. Photo by C. Stanley Photography.)