Courting Supreme Disaster

The last week has conclusively underlined the one truth of American politics: Given enough time, partisan ploys will always erode nonpartisan institutions

The confirmation hearings [1] [See also each Senator’s interview on PBS Newshour] for the nomination of Judge Amy Coney Barrett to serve as a Supreme Court Justice have taken center stage in the US political discussion. The first stages of the hearings, including opening statements by presiding members of the Judiciary Committee as well as interviews of Coney Barrett by Senators from both parties, have shed light on each side’s approach to the judge’s nomination by President Donald Trump.

On Thursday the Democrat wing of the US Judiciary Committee moved to indefinitely postpone the nomination of Amy Coney Barrett to the Supreme Court [2]. Senator Richard Blumenthal, who initiated this motion, called the nomination process a “historically unprecedented” rush and a “sham”. The Republican majority killed that motion in its tracks with a 10-12 rebuttal. The vote to confirm Amy Coney Barrett has been scheduled for October 22 [3].

The entire process echoes to an extent the hearings that preceded Justice Brett Kavanaugh’s confirmation. What should be, in essence, a job interview (albeit for one of the most important jobs across US institutions, and one that has had direct consequences on the cultural and political landscape of the US), is transformed into, from one side, nigh-on obsequious reverence and softballs, and from the other, personal assassination attemps, moral gotchas, and guilt by association trials.

Truth be told, very little time on either side, aside from a select few questions about Barrett’s opinions on previous cases or incoming cases – which she repeatedly declined to answer out of judicial deontology – has been devoted to inquiring about whether Barrett is fit to be a Justice. 

It would have sufficed for any of them to ask: “Judge Coney Barrett, what makes you think you are qualified to become a United States Supreme Court Justice?” Judge Barrett is after all not a flawless candidate; her credentials ought to have been at least examined, if not put into question. She was a clerk under Justice Scalia, a law professor for about sixteen years, and has served as a Seventh Circuit appellate Judge for little over three years. She would also be the only Justice with no Ivy League school for an alma mater [4]. Compared to Brett Kavanaugh, who was a Circuit Court Judge for twelve years before his appointment, her CV is certainly less polished.

To be fair, some Democrat Senators (Diane Feinstein and, to a smaller extent, Kamala Harris) did question Coney Barrett on her track record as a judge – between two questions about Trump’s moral character or about whether she would disclose how she would rule as a Supreme Court Justice, in clear violation of any sensible deontology.

While Republican Senators appear to be more conciliatory in their questioning – they are for the most part in full support of the nomination, so there is little incentive to be adversarial – Democrat representatives have consistently tried to tie Coney Barrett’s personal opinions to both her judicial reasoning and decisions were she to be confirmed as Justice, as well as  to President Trump’s policy intentions; and so has most of the media [5][6].

While this is admittedly concerning – her qualifications should be the central question, after all – it is partially explained by the extraordinary nature of the situation. The appointment of a new Justice so close to the presidential elections has been a contentious decision; Democrats in particular have claimed it was an affront to the American people that they should not be able to decide on the replacement of late Justice Ruth Bader Ginsburg, echoing a popular Republican argument against the nomination of Merrick Garland by President Obama. If her seat is filled by a conservative judge, the Supreme Court would become imbalanced in favor of conservative leaning decisions. This is particularly pressing, for Democrats, as the Supreme Court is set to rule on cases relative to many key issues like the Affordable Care Act [7].

On the other hand, Republicans have backed President Trump in his nomination, opposing the Democrat’s narrative with a legalistic approach. The political precedent that could apply to federal nominations, known as the Thurmond rule, has been consistently labeled a “myth” and an “urban legend of judicial nominations” according to the American Constitution Society for Law and Policy and the Alliance for Justice (The pages concerning the Thurmond rule have mysteriously been deleted at some point since the nomination of Merrick Garland – go figure – but can be viewed offsite here). 

The Thurmond rule is invoked by Democrats now, but it was also held up by Republicans in 2016. This is massively hypocritical. Mitch McConnell very clearly made statements in 2016 that mirror almost exactly the sentiments currently being expressed by Democrats, underlining the people’s right to choose and tying judicial nominations to the presidential election [8]. Senator McConnell nevertheless has sought to preserve his modesty with the fig leaf of a few statements he made emphasising the Senate’s right to be the last word in these appointments. Constitutionally, he is correct, but that certainly wasn’t the main thrust of his argument in 2016. Nevertheless, the Republican’s control of the Senate leaves the Democrats utterly at the mercy of this obvious ploy. 

It would frankly be easier to feel more sympathy for the Democrats if they hadn’t also completely reversed their positions from 2016, only without the benefit of having the power to back up their flip flopping. Currently, the Republicans claim (correctly) to have the law on their side, and the Democrats have, in practice, nothing left but their eyes to weep.

To the matter at hand, now: Both parties seem to be working under the impression that an elected Justice means a voice for the party that appoints it at the highest judicial office. Yet Barrett repeatedly stated, throughout the hearings, that she had made no precommitment one way or another with regards to any issue set or potentially set to be examined by the Supreme Court. 

Furthermore, with regards to one of the Democrats’ main concerns (the apparent 6-3 conservative majority that Barrett’s appointment would create in the Court), an examination of the track record of either Justices appointed by Trump during his presidency, Neil Gorsuch and Brett Kavanaugh, is telling. Time and time again, neither of them have been Trump’s policy props, even ruling against him in a decision to allow for examination of the President’s tax records [9]. They have sided with their more liberal colleagues on many occasions, and overall have demonstrated what can be called political independence from their appointor. This is also true of Chief Justice Roberts, whose rulings have been far from obviously partisan or religiously motivated, despite his nomination by President George W. Bush.

This is crucial: Judge Barrett mentioned several times during the hearings that the Supreme Court Justices are appointed for life with the express intent of disarming mechanisms of political patronage :  They can ignore partisan pressures because they are irrelevant to their tenure. 

This ties into another thing that seems to be misunderstood, from what the hearings have shown. The Supreme Court is not an institution that serves as a stamp of approval for policies. Conservative or liberal, Justices must reason through the law, through the Constitution. Just because their personal views on, say, abortion, lean one way or another does not mean that they will focus the entirety of their office to repealing protections for abortions. That would be judicial activism; not to mention that in order for the Supreme Court to rule on anything, aside from advisory opinions, a case needs to be brought to it through a strict judicial process. It requires a lower court – usually a federal Court of Appeals to have ruled on such a case first. 

Ultimately, this supreme court nomination has once again boiled down to a life-or-death struggle between the parties that leaves judicial appointees befuddled and bemused; if one thing is clear, it’s that somehow, a room full of legislators (most of whom attended the most prestigious law schools in the country) only care about the law when it’s convenient for them. We at the CIR look forward to republishing this article with a name swap in four years.

Sources:

  1. Watch the top moments from Amy Coney Barrett’s Supreme Court confirmation hearings, PBS NewsHour, Youtube
  2. Veronica Stracqualursi, “Judiciary Democrats try to delay Barrett confirmation after CNN’s KFile finds omissions in Senate paperwork”, CNN, October 15 2020
  3. Tyler Olson, “Amy Coney Barrett’s Supreme Court confirmation schedule: A timeline”, Fox News, October 7 2020 
  4. Aaron Steckelberg, “The current Supreme Court justices are all Ivy Leaguers”, Washington Post, January 26 2017 
  5. Arwa Mahdawi, “Goodbye civil rights: Amy Coney Barrett’s America is a terrifying place”, The Guardian, October 17 2020
  6. Meena Rincon, “SCOTUS hearings: What Judge Barrett’s addition to Supreme Court could mean”, ASU Now, October 16 2020
  7. Ariane de Vogue, “Supreme Court to hear Obamacare case one week after Election Day”, CNN, August 19 2020
  8. Katie Wadington, “What McConnell said about Merrick Garland vs. after Ginsburg’s death”, USA Today, September 19 2020
  9. Adam Litpak, “Supreme Court Rules Trump Cannot Block Release of Financial Records”, New York Times, July 9 2020 

image credit: PBS Newshour

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