I haven’t been sleeping well, which isn’t like me. Still getting used to the new house I suppose. Louise is away so when I woke in the middle of the night I did the thing that always makes me feel better. Not that thing. The other one. I went to the closet and put on my robe. The black one.
I stood and looked at myself in the mirror. OK, full disclosure: I admired myself. I earned that right, didn’t I? The robe itself wasn’t any different than the ones I’d been wearing for eleven years. But it was the idea of it—what it represented, as opposed to all its predecessors—that I loved. I’ll cop to that. I’m only human.
“Your sleeves are a little long,” came the voice out of the darkness.
I nearly jumped out of my skin. Involuntarily I wheeled around and saw him sitting there in the club chair by the armoire. Head of wavy gray hair. Wire-rimmed spectacles. That kindly, owlish look.
“Merrick?” I gasped.
“Correction. I’m the ghost of Merrick Garland.”
My head was swimming. “But…Merrick Garland isn’t dead.”
“I’m not being figurative. I’m just asking, how can you be Merrick Garland’s ghost if he isn’t dead?”
“That’s what you’re having trouble with?” said Merrick, or his ghost, or whatever this apparition was. “The point is, I’m here to haunt you.”
I stammered, at a loss for words. He filled the gap for me.
“How are things down at the SCOTUS?”
“Peachy,” I said.
“I’ll bet,” he replied without bitterness, at least none that I could detect. But then, it’s easy for ghosts to hold the high ground.
He looked me in the eye. “And it isn’t bothering you?”
“Talk?” I said.
“That you ought to have declined the nomination, on principle. Seeing as the seat you were being asked to fill was stolen.”
I snorted. “Do you really need a lesson on constitutional law, Merrick?”
“No, but I think Mitch McConnell might.”
“He didn’t do anything illegal.”
“No, he just wildly disregarded the intent of the law. Willfully shirked the Senate’s constitutional responsibility to give the nominee a fair and timely hearing. Engaged in shameless obstructionism, even by his standards.”
I dismissed him with a wave. “That sort of thing has always gone on and you know it.”
“Not like this, and you know it. If the Democrats had done that to a Republican president’s nominee, your side would have screamed bloody murder.“
“Not to put too fine a point on it, but you sound like a sore loser.”
“Doesn’t make what McConnell did right. He got very very lucky when November rolled around. Then again, it seems your side had some help from some guys in furry hats.“
I suppressed an eyeroll. Well, maybe not, but I tried to. “Clinging to that fantasy, are you?”
Merrick ignored the remark like a good litigator. “But forget Mitch. Let’s talk about you, and what you did—or didn’t do.”
I crossed my arms, but not defensively. “Go on.”
“During your confirmation, we heard all that talk about your ‘integrity.’ That whatever Mitch had done, you were eminently qualified, and a top drawer legal mind, and ‘a stand-up guy.’ A choice that even Democrats couldn’t find any fault with, professionally speaking.”
“Are you questioning that?”
“A little. How much integrity could you have if you were willing to take a seat that had been kept open by indefensible tactics that blatantly violated the spirit of the Constitution you claim to hold so dear?”
“Are you not concerned about the honor of the court? The damage this did to its credibility? The arms race of politicization that it will surely set off?”
“You really like playing the martyr, don’t you, Merrick?”
“One has to embrace the role in which one is cast, I suppose. Do you seriously think the next time we have a Democratic Senate, they’re going to forget what happened? That we’ll ever again have a legitimate confirmation process, unless one party controls both houses and the presidency too? You could have put a stop to all that singlehandedly. But you didn’t.”
“You can’t hold me responsible for all the partisanship in Washington. Or even this example of it.”
“No, but we can hold you responsible for agreeing to take advantage of it.”
I snorted again. “You wouldn’t have done the same?”
“We’ll never know, will we?”
“No. We won’t,” I said firmly. The trump card, as it were.
“So which was it then, Neil? That you wanted that seat so badly you were willing to ignore that sort of despicable behavior, or that you genuinely didn’t find it disturbing?”
“Maybe I simply believe everything that happened was fair and just.”
Merrick raised a brow. “Do you?”
I was silent. Did I really believe that, or had I just talked myself into it….the way the whole conservative movement had talked itself into this place we now found ourselves? The platitudes I repeat to the Federalist Society in a packed ballroom to thunderous applause are one thing. But in my heart of hearts? I didn’t know any more.
The ghost must have sensed my ambivalence. He plunged the dagger. “You’re destined to have an asterisk by your name for all eternity.”
“At least my name will be remembered,” I snapped back. “At least it will be on the rolls of justices of the Supreme Court.”
“Yes—as the justice nominated by Donald Trump. Quite a distinction.”
“I may not be the only one.”
“I think that’s what’s keeping people up nights. One of many things, actually.”
“In fifty years, or a hundred years, no one will remember who nominated me to the Court. They’ll only remember that I sat on it, and what I did there.”
“Not sure you’ll be any better off that way—not if you’re remembered as a champion of regressivism. A consistent protector of corporations and the obscenely rich and the imperial presidency. Enabler of authoritarianism. Defender of crypto-racism and the last gasp of panicked white America, watching its majority slip away.”
“Nice spin. I’d describe those same things as faithfulness to the ideals on which this great country was founded. Pity you can’t see that.”
Garland tut-tutted like a schoolmarm. “I never had much truck with originalism, as you know. We all admire the Constitution, but even the Founders didn’t think it was written in stone and carried down from Mount Sinai—with apologies to Roy Moore. If they hadn’t intended it as a living document they’d never have provided for ways to amend it.”
“And I am all for amendments. What I am not for is reinterpreting it— distorting it—without going through the prescribed process. If your ilk had its way, the Constitution would have all the longevity of a Facebook page.”
“I notice you have no problem extrapolating the Second Amendment to AK-47s, rather than limiting it to muskets. So that fidelity is actually kinda flexible, no?”
“Don’t talk to me like a 1L.”
“Just pointing out the silliness of unquestioning obedience to an ancient scroll written by a bunch of slaveholders in breeches and powdered wigs. It’s a bit like blind faith in the Bible, which is fitting, as those two tend to go hand in hand with conservatives. Don’t get me wrong: the Founders were visionaries. Visionary enough to know that the rule they were laying down needed a mechanism to adapt to the passage of time and the emergence of new challenges they couldn’t possibly foresee. Even if we were to accept their word as absolute law, your originalism requires not only supernatural insight into what the Founders intended 250 years ago, but also paranormal understanding of what they would have wanted a quarter of a millennium hence.”
“Much as I’d like to disassemble your distortion of my philosophy, let’s just say I just don’t believe in legislating from the bench.”
“Come on, Neil. The right wing is all too happy to legislate from the bench when it’s their man sitting on it. It’s only progressive judges they tell to shut up and stay in their place. At least be honest about it.”
I couldn’t even pretend with the eyeroll this time. “Merrick, I know you’re a ghost and all, but do you really think you’re going to come in here and make me stop believing in everything I’ve devoted my whole life to?”
The ghost smiled sadly. “No. I guess not. But it isn’t just your ideology that’s a problem. It’s your style too.”
“Oh?” His sanctimony was beginning to grate on me.
“During your confirmation you were all homespun folksiness, high-minded assurances of your integrity, and humble declarations of your love for the law….”
“You’re familiar with how confirmations work, right?”
“….but since you got on the bench—and we’re only talking seven months—you’ve established a very different reputation, haven’t you? Arrogance. Snottiness. Lecturing and condescending to the other justices, who have a combined 140 years of experience on the Court.”
“I was put on that bench to do a job, not to act like a fraternity pledge. Not to engage in some judicial kabuki drama of deference to seniority.”
“Be that as it may, word is that you’re pissing some of your peers off. I heard Ginsburg shut you up the other day with one line in the middle of you speechifying about gerrymandering. And I hear Kagan is eating your lunch in conference….”
“Poppycock. No offense, Merrick, but outsiders—whether it’s Nina Totenberg or you—really don’t know what goes on in conference.”
He ignored me, and the dig. “And it’s not just the liberals either. You insulted Kennedy—who you used to clerk for!—in the Obergefell case. And I can’t imagine Roberts is very happy with you, even though you ought to be allies. You know very well that how protective he is of the legacy of the Court. Yet there you are, going around giving speeches like the one at the University of Louisville, where McConnell introduced you—the man who even more than Trump is responsible for you sitting where you now sit. Or worse, the one you gave at the Trump Hotel, with all that money going to the Trump organization.”
“Justices give speeches all the time.”
“Not ones that put money in the pockets of the president they owe their nomination to. Not when that president’s profiteering is an issue that might well wind up in front of you. Not when you’re already under a cloud.”
“I’m not under any damn cloud!”
A hint of a smile began to play across his face now. “What happens to you if Trump goes down?” he asked. “I’d say ‘when,’ but I’ve learned not to count any unhatched chickens.” I was silent. He seemed to be enjoying twisting the knife now. “Surely you’ve thought about it. If Trump is removed from office for having conspired with the Russians—if the whole election is determined to be fraudulent—what happens to you? What happens to all the federal judges on the lower courts and all the other nominees Trump has put in place? Not to mention the policies and executive orders. Sadly, we don’t have a time machine that lets us unwind the damage. But there are certain high-profile appointments whose legitimacy people are inevitably going to question. Like an Associate Justice of the Supreme Court.”
“You’re living in a fantasy world, Merrick.”
“Would you voluntarily step down?” Before I could answer he cut me off. “Silly me. I’ll withdraw the question. I think we know the answer very well, or you wouldn’t be sitting on the Court right now in the first place. So I suppose a lot depends on what happens to Trump, doesn’t it? Your destiny is yoked to his.”
“Then I suppose history will judge, won’t it?”
“Indeed it will.” He smiled openly now. “Maybe you’ll get lucky. Maybe Trump will push the button and the whole human species will be wiped out in a nuclear holocaust. Then no one will be left to scorn you. That would be a sad way for it all to end, wouldn’t it? Destroyed by some shoddy D-list reality TV celebrity?”
“Whom we the people made president,” I shot back.
“Precisely the problem.”
We stood face to face, silent for a moment, just staring, until at last he spoke again.
“Face it, Neil. You’re never going to be thought of as ‘just another justice,’ and I don’t mean that in a good way. It’s already very clear what sort of Supreme Court justice you are. One who accepted a seat that had been stolen from another jurist. One who’s committed to a retrograde agenda that history will judge as harshly as Dred Scott or Plessy v. Ferguson…..or Citizens United. One who agreed to be nominated by the most monstrous chief executive in modern American history—and maybe American history full stop—who may well be shown to have assumed his office illegitimately, but has undoubtedly debased it and our entire democracy, maybe permanently. You, Neil, are a man who kissed that monster’s ring and is complicit in his criminal administration and in advancing his horrific policies. And when he’s run out of office in disgrace—if not in chains—you’ll still be there, remembered as a usurper and a regressive and a quisling.”
I could feel my blood boiling as he made his patronizing little speech. I’d had enough of his self-righteousness. Of course I could have let it go—should have let it go. It was so obviously the hysterical venting of a man who felt robbed. An unlucky bastard. One of history’s losers. If what he’d said hadn’t bothered me—if I’d truly been able to hear it for what it was, and how pathetic—I could have laughed it off. But I’ll admit, it had gotten under my skin.
I opened my mouth to reply, and then I blinked….And he was gone.
I blinked again, just to make sure my eyes weren’t playing tricks on me. I was all alone inn the quiet bedroom.
I stood there in silence a moment. What’s scarier: seeing ghosts, or just imagining that you’re seeing them?
I took off my robe and got back in bed. I don’t care what he said. Sour grapes, it goes without saying. The sourest of all. A man who’s destined to a be a footnote to history attacking a man whose place in it is secure. I’m not compromised. I’m not complicit in the theft of any seat. I’m not tarred by my association with Trump. He’s not going down in disgrace and leaving me tainted. I’m sure of it. Pretty much.
I turned and looked toward the window. Outside, there were no stars and no moonlight. Dawn was hours away yet. I had a long night still ahead.