Amy Barrett remains in the midst of her confirmation hearings for the Supreme Court. We all know the outcome of those hearings in advance. The questioning from the senators is only a curious sideshow of political posturing. Not that it would be anything else at any other time, of course.
The most interesting part of this process for me as a rhetorician is not McConnell’s hypocrisy, or Trump’s blustering, or concern over Roe, or even the election. What I’m curious about, rather, is why Barrett accepted the nomination. She addresses this obliquely at the beginning of the hearing to Graham:
Senator, I think I should say why I’m sitting in this seat in response to that question, too, and why I’ve agreed to be here. I don’t think it’s any secret to any of you or the American people that this is a really difficult, some might say excruciating process. Jesse and I had a very brief amount of time to make a decision with momentous consequences for our family. We knew that our lives would be combed over for any negative detail. We knew that our faith would be caricatured. We knew that our family would be attacked. We had to decide whether those difficulties would be worth it, because what sane person would go through that if there wasn’t a benefit on the other side?
The benefit, I think, is that I’m committed to the rule of law and the role of the Supreme Court and dispensing equal justice for all. I’m not the only person who could do this job, but I was asked, and it would be difficult for anyone. Why should I say someone else should do the difficulty? If the difficulty is the only reason to say no, I should serve my country. My family is all in on that because they share my belief in the rule of law.
I would not be a U.S. Senator in this life or any other, but if I were there, hopelessly compromised by the ugly process of quasi-democratic election, I’d hope I’d have the mind left to ask a question of Judge Barrett along the following lines:
“Given the President of the United States has demonstrated little respect or adherence to the rule of law in the last four years, why did you choose to sully your reputation as a impartial judge by accepting his nomination to the Supreme Court?”
I’m sure a lawyer could do a better job of wording the actual query behind my crude phrasing. But my purpose would not be to trap her. I’m interested in hearing her reasoning, if she has one beyond the above quote.
I should explain further.
My interest in why someone would accept a nomination stems from watching Kavanaugh’s sordid drama of a hearing, where I watched a grown man throw a staged temper tantrum about how he was a victim of a liberal conspiracy to smear him and that he had done everything right to get a lifetime appointment to the highest court in the land. That he deserved it. He also used his daughter as a rhetorical prop, but that’s another essay.
I don’t see that kind of obvious arrogance in Barrett. But I do see an obvious dodging of a larger issue, something bigger than originalist ideas or court-packing or religious bias or any specific case. It’s her tacit acceptance of the nomination process as in truth a political process by insisting over and over that she is not political.
This is not a new rhetorical strategy for SCOTUS nominees. They have all been squirming since Bork, and even more since Thomas. RBG played the same game in her hearing, even when her confirmation was not in the slightest doubt.
But let me be frank. The only job of a judge on the Supreme Court is to make political decisions. It is not possible, or even preferable, for a judge to make the objective value judgments that would preclude this observation.
American judges at all levels may cloak themselves in neutrality, but there is a good reason we elect them. They are not umpires as Roberts has infamously claimed. Their decisions, unlike balls and strikes and outs, change the course of millions of lives, and such decisions are always going to be arbitrarily made in some sense, no matter how artfully written and carefully reasoned the opinion. Rather, what makes a “good” justice is not any specific political stance, but a rabid commitment to fair play, to the rules, to the dignity of the slow processes of representative government.
I can understand why the framers gave the SCOTUS judges lifetime appointments – to provide stability, preventing a wayward Congress or President from realigning the country too quickly. However, Kavanaugh’s rant and the disturbing success of his casting away any shred of judicial dignity made me wonder whether that balancing idea still has the same merit that it did in the 18th century. The pandemic and Trump’s presidency have developed that worry further.
Let’s say Judge Barrett manages to fend off my first question, probably by slightly restating the block quote I provided earlier. My second question would be this:
“What would it take for you to refuse to accept a nomination to the Supreme Court?”
In other words, what are your ethical limits in terms of constitutional processes? She says she is an originalist, but nothing in the Constitution or the history of the Senate condones what the Senate and the President is attempting with her nomination. That would seem to call into question the stringency and supposed objectivity of her philosophy of law.
Perhaps a third question might bring this point home.
“Hypothetically speaking, if the Senate had refused to hold hearings on a previous nominee for the Supreme Court, would you consider not accepting a nomination yourself until that earlier nominee received a Senate vote?”
You know, given there is no other historical precedent in the Senate for refusing to vote on a presidential SCOTUS nominee, there’s probably a weird legal case to be made that Obama’s nomination of Merrick Garland in 2016 is still on the table, even after the seat was filled.
But this question is not a legal Hail Mary. It’s a moral question. Would you recuse yourself from the opportunity of a lifetime on a matter of principle, even if it placed your political allegiances at a temporary disadvantage?
There’s an ethics question I sometimes pose to people when I am feeling quixotic. I ask them if they would rather do the right thing, or be seen as doing the right thing. One or the other. Not both. Virtue or the appearance of virtue.
Naturally, everyone picks the first. It’s hard to choose the other option, frankly. But not always, but occasionally, a few weeks, months, even years later, I notice the same people choose the other option. When it comes time to make the trench run on the Death Star, they bow out, or when someone needs help with their own trench run, they’re elsewhere paying off Jabba the Hutt.
It strikes me that Barrett’s acceptance of Trump’s nomination is an example of this duality. She has sold her candidacy as a commitment to the rule of law in a constitutional republic, but she was nominated by a quixotic demagogue under questionable Constitutional circumstances. Her justification, couched as a concern for the inevitable dragging through the mud that all nominees now enjoy, is that there will be a ‘benefit on the other side.’
I wonder what that benefit will be and who will receive it.
I know she’s getting a lifetime job out of it. What will we get, though, I wonder? She says she believes in the rule of the law. But her acceptance of the nomination suggests otherwise.