USA TODAY International Edition

Hypocrisy destroys trust: GOP lawyers

Barrett’s confirmation process is deeply unfair

- Donald B. Ayer and Alan Charles Raul

When a vacancy on the Supreme Court arose nine months ahead of the election in 2016, Sen. Mitch McConnell said in no uncertain terms: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

Now, after the death of Justice Ruth Bader Ginsburg less than two months before Election Day, as voters are already casting ballots in many states, McConnell has reversed his position. His naked hypocrisy threatens the future credibilit­y of our federal judiciary.

Our opposition is not partisan, quite the opposite. We served at upper levels of government inside Republican administra­tions and we are united in our opposition to the rushed nomination, hearing and confirmation of Judge Amy Coney Barrett to the United States Supreme Court. Our concern is not related to the qualifications of Barrett. Rather, we believe that the process being pursued is fundamenta­lly unfair and will greatly undermine public trust upon which our democracy depends.

Indeed, if Senate Republican­s force Barrett through in the waning weeks before a presidenti­al election — after denying President Barack Obama any opportunit­y for Senate considerat­ion of his nomination of Judge Merrick Garland nearly a year before the 2016 election — the American people will unavoidabl­y see the Supreme Court as just another forum for power politics and political players.

Going back on his word

The legitimacy of the judicial branch rests on the principle that judges are independen­t and unbiased interprete­rs of the law. A fair process for nomination and selection is crucial to preserving a public perception of the justices of the Supreme Court as neutral jurists, rather than pawns of the political process. In fact, if this Republican power play succeeds, the chief justice’s recent reaffirmation that “We do not have Obama judges or Trump judges, Bush judges or Clinton judges” will be made quite untenable.

Whatever one thinks of McConnell’s action in 2016 to deny any considerat­ion to Obama nominee Garland — and we think it was clearly wrong — an action now to proceed with a Republican nominee for a vacancy arising less than two months before the election would flatly violate the principle McConnell announced then to justify the action he took.

When McConnell set a new standard for how the Senate would proceed with a Supreme Court vacancy in a presidenti­al election year, the American people understood that this new rule would be applied consistent­ly should another vacancy to which it clearly applies arise on McConnell’s watch.

By going back on his word, McConnell’s arbitrary applicatio­n of rules obliterate­s any pretense of any justification except the bald pursuit of power. It is flatly inconsiste­nt with the vision of our founders that our government would be made legitimate because it was trusted by and accountabl­e to the people.

And if left unchecked, McConnell’s move — and the complicity of every Republican senator who refused to consider Garland’s nomination in 2016 but will go along with a vote now — will powerfully testify that the Republican­s who control the Senate have no respect for the consistent applicatio­n of legal rules, but seek only to maximize their own power.

Losing faith in our democracy

If the Senate moves forward with Barrett’s confirmation with such crass and naked hypocrisy, then more people will lose faith in our democracy. And as we’ve seen throughout history, democracie­s crumble when people lose faith in them. Just think of the consequenc­es for credibilit­y if an electionre­lated dispute makes its way to the Supreme Court and the vote of a newly installed Barrett decides the case.

Sometimes the rule of law calls for restraint in the exercise of lawful power in order to assure public confidence and respect. Greater comity — or selfrestra­int in pushing political power to the max — strengthen­s American democracy and makes our institutio­ns more successful.

In today’s partisan and polarized world, it’s easy to resign ourselves to cynicism. But all we need is for the esteemed members of the Senate Judiciary Committee to refuse to hold a hearing for any Supreme Court nominee before the election on Nov. 3 in order to set things right. If that fails, then just two more Republican senators could slow the march toward further politicizi­ng the court.

If the Republican senators bind themselves to the principle that they themselves invoked four years ago — to let the people decide — then they will advance the people’s faith in democracy. If not, then they will undermine it. For all our sakes, we hope they make the right decision.

Donald B. Ayer served for 10 years in the Department of Justice, including as U. S. Attorney and Deputy Solicitor General under President Ronald Reagan and as Deputy Attorney General under President George H. W. Bush. Alan Charles Raul was appointed to senior legal positions by Presidents Reagan, Bush and George W. Bush, and as Associate White House Counsel worked closely on the Supreme Court nomination of Antonin Scalia.

WANT TO COMMENT? Have Your Say at letters@ usatoday. com, @ usatodayop­inion on Twitter and facebook. com/ usatodayop­inion. Comments are edited for length and clarity. Content submitted to USA TODAY may appear in print, digital or other forms. For letters, include name, address and phone number. Letters may be mailed to 7950 Jones Branch Drive, McLean, VA, 22108.

Newspapers in English

Newspapers from United States