My Objection to Confirming Justice Barrett

A more thorough (and therefore longer) version of this argument is available here.

Exactly one week ago, the United States Senate confirmed Justice Amy Coney Barrett’s position on the Supreme Court of the United States. By that point, most Americans had decided that the seat should be filled. Nevertheless, a significant minority believed otherwise, many of us for reasons unrelated to the qualities of then-Judge Barrett. You’ve probably heard the reasons why, in the form of a conclusory sentence or question-begging rant, but I think it would help to re-state the explanation in more detail.

The commonly given short version is “the Republicans stole this seat from Merrick Garland.” That is not illuminating. A more accurate statement would be that, frankly, this was the latest step in a conservative march to seize power through politicising the courts.

“But what about what the Democrats’ attempts to seize power through politicising the courts?” We’ll get to the Democrats, don’t worry, but we need to explore what happened before we can get into whether it was justified.

Let’s start with the assumption that the Supreme Court, like any court, should be staffed by impartial judges who interpret the law to the best of their ability. That might seem simplistic, even unrealistic, given the current state of the federal judiciary in general and the Supreme Court in particular. I doubt I could believe it had I been brought up in the United States. Nevertheless, if it is a fiction, it is a fiction that most Americans pretend to accept. More importantly, if the Supreme Court has become the ultimate political body that many now believe it to be, we need to decide how to change the structure of the Court to reflect that. We persist in treating it as a court, so I will do the same.

Now, some context. First, we have to consider the nature of the Supreme Court itself. The Supreme Court of the United States is able to choose which of the litigation submitted to it to hear. Most political issues are now litigated and most of that litigation is submitted to the Supreme Court. It would be an exaggeration to say that the Supreme Court can involve itself in whichever political issues it pleases but not much of an exaggeration. Much of this litigation is brought by Republican politicians or causes aligned with the Republican Party (as is also true of the Democrats but, I repeat, we need to assess what the Republicans did before we evaluate whether it was justified).

Second, we need to consider Republican Senators’ approach to the federal judiciary in general. When Republicans took control of the Senate, it began to block President Obama’s judicial nominees to an unprecedented extent. Perhaps the refusal to consider any of these nominees was based on legitimate concerns about their judicial philosophies but, so far as I am aware, many (perhaps most) of the candidates were intentionally non-controversial. This is also consistent with comments made by senators at the time. Indeed, at least ten judicial candidates nominated by President Obama were later re-nominated by President Trump and confirmed by a Republican Senate! The Republicans also rejected proposed legislation that would have increased the number of federal judgeships. The severe need to increase the number of federal judges was known at the time.

Now we reach the nomination of Judge Garland. Returning to our assumption about the nature of the Court, it should be clear what was appropriate for the Senate: if the Senate deemed him fit for the Court, it should have confirmed him; if it found him insufficiently qualified, or had insurmountable concerns about his judicial philosophy, it should have rejected him so that the President could propose another candidate. In fact, the Senate never even considered his qualifications. Before President Obama had put forth a nominee, Republican members of the Senate had committed to leaving the seat empty, saying that the candidate should be decided in an election that was then nine months away. According to Ballotpedia, only three Republican Senators unambiguously opposed Judge Garland based on his record. A few others were ambiguous on this point. Some Republican Senators specifically praised Judge Garland, whether or not they thought the confirmation process should move forwards. Most refused to address the merits of the individual nominee, either because of the upcoming election or because they were opposed to any judge nominated by President Obama.

In short, Judge Garland’s nomination was not rejected because he was unsuitable for the Supreme Court. It was rejected to prevent President Obama from appointing another justice – any other justice – to the Court.

The rest is (recent) history. President Trump nominated candidates to fill the large number of judicial vacancies that his Party had created. In doing so he has referred to their opposition to abortion and their commitment to the right to bear arms, “public safety,” “free speech,” “religious liberty,” and even (recently) to the integrity of elections. The Republican controlled Senate did what it could to confirm as many of those candidates as possible, as quickly as possible. Although the latest vacancy on the Supreme Court also opened in an election year, significantly closer to election day than had the seat now occupied by Justice Gorsuch, Republican Senators did not leave the seat to be filled after the election.

Moreover, as I’ve objected before, the process went forward with undue haste. The period between a nomination and confirmation hearings is typically a full month longer than it was in this case. There is a good reason for that delay: it ensures that senators are able to scrutinise the candidate’s record; it also means that ordinary lawyers, most of whom are not able to undertake extensive projects at a moment’s notice, have sufficient time to offer their own insights. It would be very optimistic to think that the rushed nature of the hearings was solely responsible for their low quality. It is entirely possible, however, that the rush contributed in some way.

There may well be valid reasons to shorten that period but I haven’t heard any of them put forward. On the contrary, all the reasons seemed to cut against doing so, from the risk of spreading Covid-19 to the imminent election. Perhaps the Senate wanted Justice Barrett to rule on as many cases as possible. I think this weighs the costs and benefits wrongly. Even if Justice Barrett’s presence on the Court a month earlier would change any decisions from wrong to right, which strikes me as improbable, that change would benefit the country (and the rule of law) far less than reducing the politicisation of the Court. I find it more plausible that, for political reasons, the Republican-controlled Senate rushed the confirmation process to ensure that Judge Barrett became Justice Barrett before the election.

That, if you will, is the case for the prosecution. At best, the Republican Party has impeded the judicial selection process for political purposes. At worst, it has actively undermined the independence of the judiciary by selecting judges who would support its policies and opposing the nomination of those who would not. Now, let’s consider the defence.

First, Republicans are fond of ascribing the politicisation of the judiciary to the Democrats. I am no historian, so I will assume that these claims are correct. Certainly, the Democrats have not been paragons of integrity on this score. They, too, opposed bills to expand the federal judiciary despite the recognised need to do so. They frequently base their judicial selections on desirable policy outcomes. Their response to Trump’s judicial nominations, from unjustified opposition to “Republican” judges to their conduct during Supreme Court confirmation hearings, has been indefensible.

Yet, whatever damage the Democrats have caused, it only justifies Republicans’ actions if those actions are directed towards repairing that damage. That isn’t what happened. They did not oppose specific Democratic-nominated judges because of any qualms about judicial ideology, they simply opposed the Democrats’ ability to appoint judges. Furthermore, President Trump has been quite open about selecting judges who will promote certain ends. These ends might be dressed up in the language of constitutional rights but, properly understood, they are clearly the same ends that conservatives seek to promote through other means. Now, conservatives often have valid arguments that the law supports a given policy position. I even think some of those arguments are correct. The thing is, the U.S. Constitution wasn’t drafted by modern conservatives, any more than it was written by their progressive contemporaries. The legislation that courts interpret was enacted by many sessions of Congress – conservative, progressive, and in between – often in response to a very different world. If one concludes that this mélange of history invariably supports one’s policy goals, the only question is whether one is intentionally lying or simply too biased to realise it.

Second, there is the argument that there was nothing inappropriate about the confirmation of Judge Barrett. It is true that the confirmation, in itself, did not violate any long-running historical norms: there is no tradition of refusing to confirm candidates for the Supreme Court during election years (no nominee had yet been proposed so close to the election but one should not infer too much from that fact). This misses the point, which is the inconsistency between the nominations of Judge Garland and Justice Barrett. One cannot take advantage of a rule and then disregard it when it becomes inconvenient.

So, were the circumstances of those nominations essentially equivalent? Should the same rule have governed both? The only significant difference between the two is that, at the time of Justice Barrett’s nomination, the Senate was controlled by the President’s party. Republicans have been consistent in treating this as a significant distinction. Is this distinction, then, actually significant? I do not see how it can be. If the American people is entitled to decide who fills a vacancy that arises in an election year, I do not see how it matters whether the Senate majority and the President are of the same party. Additionally, this distinction is not supported by history. It is true that 1888 was the last time the Senate confirmed a judicial nominee from a president of the other party. The reason for this, however, is simply that the opportunity has not arisen since then: 1888 is the last time a president nominated a candidate to the Supreme Court during an election year while the Senate was controlled by the opposing party.

Two further objections can be raised. The first is that the Senate has not politicised the Court because it cannot actually control the decisions of its appointees. That is, so long as individual judges are not dependent upon political favours or openly political in their decisions, the judiciary as a whole remains independent.

The assumption that judges are independent of politics is naïve. Do judges intentionally violate their oath to impartially uphold the law? As a rule, they do not. Are judges’ rulings influenced, even unconsciously, by their biases and ideology? Of course! This view might sound cynical, even ungentlemanly, but it is far from radical: I could fill a paragraph (and a scholar could fill pages) describing how widely accepted it is among lawyers. Justice Barrett herself has acknowledged as much, in both theory (“Of course judges often have to set aside their personal convictions in order to do justice, but this is easier in some cases than in others”) and practice (reversing a criminal sentence because it might have been influenced by the sentencing judge’s personal bias). [Catholic Judges at 333; United States v. Atwood]

Even so, let’s be naïve. Let’s assume that judges, like Vulcans, fully subordinate all other impulses to logic. Does this mean that stacking the court for political reasons respects judicial independence? The answer has to be no. Judicial review is not supposed to be a formality with a foregone conclusion, it is supposed to be a substantial process in which courts disinterestedly assess the legality and constitutionality of various acts by the legislature and the executive. Ideally, this disinterested review would come from choosing judges who do not strongly favour either party; failing that, it must come from both parties respecting the rules, permitting their adversaries to appoint judges even when it is unfavourable to them. Filling the courts with judges who will vote in politically desirable ways, precisely because they will vote in politically desirable ways, is an evasion of the process in everything except form. That is true even if the judges in question would otherwise be qualified for their position. We recognise this when politicians try it in, for example, Hungary. Why is it any less true in the United States?

The second objection is that Republican politicians are not actually appointing judges. Instead, the nominations are made by conservative lawyers, who choose candidates purely on the basis of qualifications and judicial ideology. Arguably, we are entitled to take our elected representatives at their word, but President Trump has given us reasons to doubt him on the subject of judges. Of the three persons the President has nominated to the Supreme Court, only one was on the lists of candidates he released while seeking election. You yourselves must assess the degree to which you believe recent candidates have been appointed based on political ideology rather than judicial competence and whether you regard that degree as acceptable. In making that assessment, I call to your attention: that the ABA Standing Committee on the Federal Judiciary has rated ten of President Trump’s nominees not qualified; that their confirmation hearings have frequently revolved around extreme political statements; and that at least one candidate has been rejected for being on the wrong side of a political issue.

“To adjudicate” in the United States has become an irregular verb: I apply the law to the facts; you let your political ideology dictate your reasoning; he subverts the Constitution by legislating from the bench. It is increasingly common to hear members of either party talk about a President appointing judges as though it were an act of oppression, rather than an essential part of the President’s duties. The nomination of Justice Barrett was an opportunity to counter-act this ever-increasing politicisation of the courts; that opportunity was not taken and, whichever party wins the election, it seems certain the politicisation will continue to increase. If we wish to have a functional judiciary again, we need to decide the type of courts we want – courts of law or the arbiters of political disputes – and re-structure them accordingly.