Nomination masks political intention
Unlike election, struggle over Supreme Court is outside reach of voters
WASHINGTON— In a committee room at the Hart Senate Office Building, Amy Coney Barrett said Tuesday, during the second day of hearings on her nomination to the U.S. Supreme Court, “It would be a complete violation of the independence of the judiciary for anyone to put a justice on the court as a means of obtaining a particular result.”
That’s a straightforward enough statement of a U.S. legal principle. But she appeared to be the only one involved in the whole confirmation process to believe it.
President Donald Trump, who nominated her, has repeatedly said he’s appointing judges who will overturn the Roe vs. Wade decision that legalized abortion and has said he particularly needs her on the court now in case the election result is disputed. Democrats on the committee have been clearly making the argument that the likelihood she will overturn the Obamacare health insurance legislation is a reason she should not be confirmed. Republican members of the committee who support her nomination — including Ted Cruz of Texas — used the hearings to explicitly argue some bans on abortion should be upheld by the Supreme Court. There were long speeches — not even pretending to be questions of Barrett — by each party attacking the other in the context of the election that is just three weeks away. Competing groups of protesters outside the building clashed before her hearing began, each side proclaiming on the “particular results” they expected her to deliver as a justice.
Amid the mind-numbing hyperpartisan spectacle, Barrett’s aw-shucks refusal to offer any opinion whatsoever on any issue that might come before the court seemed an incredibly naive failure to acknowledge what everyone else openly indicated the process was about. Like the election, it is a struggle for control of the government, only this one takes place outside the reach of voters.
In this case, of course, it’s also a frantic scramble to install a lifetime appointee to the court to ensure a conservative majority there for the foreseeable future, and to do so before an election result prevents them from being able to do so. Moreover, those scrambling to do it were a president elected by a minority of the popular vote and a Senate Republican caucus representing a minority of the population. That is, the process makes a mockery of the kind of principle Barrett was proclaiming.
There has been a lot of talk recently about whether Trump’s questioning of the integrity of this year’s election might “break” American democracy. To any Canadians watching this week, there are a lot of ways it might already appear broken. And the court process is just part of that — witness hours-long lines for early voting in Georgia and Texas, for example, or court fights about apparent voter-suppression efforts. But the court system as a stark two-team fight to the death in which strategies to circumvent the will of the people dominate the process is a pretty stark example.
And many Americans see it: A
Gallup poll this year said only 40 per cent of people have “a great deal” or “quite a lot” of confidence in their Supreme Court, down from 50 per cent of people in 2002 and 2003 and five-decade high of 56 per cent in 1985. This isn’t just a Trump phenomenon; trust in the Supreme Court was even lower during parts of Barak Obama’s time in office. But the recent decline coincides with the hyperpartisanization of court appointments.
During Barrett’s hearing, many Republicans were decrying the possibility that Democratic presidential candidate Joe Biden might “pack” the Supreme Court by expanding it if he were to win. (Biden has refused to comment on it either way.) But as Democrats point out, Republicans have been using their own means of stacking the court with their ideological allies: Senate Majority Leader Mitch McConnell proudly talks about using his Republican majority to refuse to confirm 110 court appointees Obama nominated, including a Supreme Court nominee, so that Trump could appoint more than 218 judges, including three Supreme Court justices in his first term in office. New York Attorney Luppe Luppen (who tweets as @nycsouthpaw) says McConnell has played “Calvinball” with court appointments, a reference to the cartoon-strip game in which the players make up the rules as they go along. The idea that the courts are a non-partisan check on the legislative and executive branches becomes a laugh when one party openly games the system — supported by a minority of voters — to rig the court in its own favour.
Utah Republican Sen. Mike Lee, who is positive for COVID but is attending Barrett’s hearing in person, made a long speech Monday about Biden possibly expanding the Supreme Court. “If you do so for partisan political purposes at all, you delegitimize the court,” he said. “You can’t delegitimize the court without fundamentally threatening and eroding and impairing some of our most valued liberties.”
It seems that may be right. But it also seems it would apply to a lot more than just the possibility of expanding the number of justices.