We tell our children to play by the rules. We tell them treating everyone fairly ensures respect for the system.
Unless, of course, you’re a nominee for the Supreme Court of the United States. Then, based on how the Republicans have handled the vacancy created by Justice Ruth Bader Ginsburg’s death, there are no rules. All that matters is getting your way.
There was a rule, of sorts, that the Republicans imposed for Judge Merrick Garland, the moderate judge nominated to fill the opening left by the death of Justice Antonin Scalia in February of the final year of Barack Obama’s presidency. Obama nominated Garland because Republicans had voiced support for him in the past — Sen. Orrin Hatch of Utah had called him a consensus choice for the Supreme Court. Given that he would be replacing the court’s archconservative justice, that seemed fair.
But nothing that followed had even a hint of fairness to it. Republican Majority Leader Sen. Mitch McConnell declined to hold hearings or permit Garland’s nomination to come up for a vote. Why? Because, as multiple senators in the majority said, there should be no confirmations during a president’s final year in office. Instead, they insisted that the people first be allowed to elect a new president, giving them a say in the process. Sen. Lindsey Graham, R-S.C., the current chairman of the Senate Judiciary Committee, volunteered: “If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, ‘Let's let the next president, whoever it might be, make that nomination.’”
Fast forward to September. Ginsburg had been dead for less than 24 hours when President Donald Trump announced his intent to nominate her replacement. McConnell took even less time, announcing on day she died that he would hold a vote on her successor.
What happened to the rule Republicans announced in 2016? What happened to basic fairness? Or to Graham demanding that we hold him accountable if he violated his word?
We live in a country where the rules are supposed to apply equally to everyone. There isn’t supposed to be one set of rules for Democrats and another for Republicans. Nowhere is basic procedural fairness more important than at the Supreme Court, the institution charged with upholding the rule of law. Confirming a justice in a process devoid of even the appearance of integrity will inevitably diminish public confidence in the court.
The words “Equal Justice Under Law" are written in large letters over the entrance to the Supreme Court, a constant reminder that it is the place where people go to have their most difficult and controversial disputes resolved. Every case before the court has winners and losers, but losing parties abide by the court’s decisions. Even disgruntled litigants understand that the justices uphold the oath they take, which requires them to“faithfully and impartially discharge and perform” all of their duties. In other words, the justices play by the rules and so must the people who come before them.
Despite the criticism of Judge Amy Coney Barrett’s performance at her confirmation hearing, concerns over what her confirmation portends for the Supreme Court’s future have more to do with the institution’s loss of legitimacy than her inability to name all five of the protections guaranteed by the First Amendment. The process that brings her to the verge of confirmation for a lifetime appointment is transparently rank. It is a bald political power play unbefitting the Supreme Court and the justices who serve on it. It dishonors Ruth Bader Ginsburg, who served the country so faithfully.
Senate Republicans cannot treat the nominations of Merrick Garland and Amy Coney Barrett differently and maintain the intellectual honesty of the confirmation process. And that’s what the court is supposed to be about, intellectual honesty on the toughest calls we face in our society. Many of Barrett’s own former Notre Dame colleagues called upon her to reject a process that was so blatantly opportunistic and demand that her “nomination be suspended until after the election.” Eighty eight of them pleaded with her to recognize the “treacherous moment in the United States” and that “the politics of your nomination, as you surely understand, will further inflame our civic wounds, undermine confidence in the court, and deepen the divide among ordinary citizens.”
In 2018, Graham reaffirmed his commitment that no justices should be confirmed during a president’s last year in office, saying "If an opening comes in the last year of President Trump's term, and the primary process has started, we’ll wait till the next election." Today, we are well past the primary process. More than 33 million Americans have already voted in the 2020 presidential race. Nonetheless Barrett’s confirmation seems all but assured.
If we have learned anything from the Trump administration, it’s that our government cannot function properly when people lose confidence in it. Trust is the essential foundation for the legitimacy of democratic institutions. And given the perilous times we face, it’s likely that institutional legitimacy is more critical at the Supreme Court than anywhere else.
We won’t get that kind of legitimacy if Barrett is confirmed before we know the results of the election. The president himself has weighed in, saying he needs a ninth justice to decide the outcome of the election, which he says he believes is headed to the courts. Despite the president’s statement, Barrett declined to say during her confirmation hearing whether she would recuse herself from matters involving the outcome of the election.
Our country has witnessed so much that is not normal during the Trump administration. It is our new (ab)normal to see the attorney general act as the president’s lawyer, not the people’s, or to watch an inspector general be fired for investigating a member of the administration. We are, regrettably, becoming numb. But letting Trump damage the Supreme Court’s integrity, even as he implies he will ask them to intervene in the electoral process, is an entirely different level of damage to our institutions.
Instead of a routine confirmation hearing, where statements were made and polite if sometimes pointed questions were asked, we need more outrage over the process that brought us here. On Thursday, in the shadow of the election, the Senate Judiciary Committee will vote on Barrett’s nomination. We are at risk of losing the Supreme Court’s legitimacy at a time when the court and the country need it most.