Elena Kagan (at that time, not a Justice) once wrote that the leading characteristics of Supreme Court confirmation hearings are “vacuity and farce.” The nation has been served plenty of both in the ongoing hearings on Donald Trump’s emergency rush nomination of Amy Coney Barrett to the Supreme Court.
But there have been shreds of meat in the thin gruel.
Readers can pick the moments in which they found the most meaning. For conservatives, I imagine that they may have been discussions of the future of religious liberty or of Barrett as a mother of seven children, two of them adopted from Haiti. I found Sen. Sheldon Whitehouse electrifying in his presentation of the aggressive, all-encompassing role of “dark money” in the nomination and confirmation of Justices and of its unparalleled success at tilting the Court toward the interests of massed capital and away from those of ordinary people.
For me, however, what stands out most clearly is Barrett’s colloquy with Delaware Senator Chris Coons about what should be (and may be) the easiest question she will face when (not “if,” because let’s face it, gang, the fix is in) she takes her seat: whether to recuse from a possible challenge to the 2020 election results by Donald Trump. To an ordinary person, the question doesn’t seem hard. Trump has proclaimed that he wants her on the court for precisely that case.
Coons, one of the Senate’s most notorious nice guys, engaged her repeatedly and respectfully on the recusal issue, and at length, he elicited from her this answer: “I certainly hope that all members of the Court have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people.” That is about as far as she had gone, by the second day of hearings, to addressing that GOP elephant in the room. But remarkably enough, answering Coons, she went on:
That would be on the question of actual bias. And you asked about the appearance of bias. And you’re right, the statute does require a Justice or judge to recuse when there’s an appearance of bias. And what I will commit to every member of this committee, to every member of the Senate, and to the American people is that I will consider all factors that are relevant to that question … that requires recusal when there’s an appearance of bias. And there is caselaw under the statute, and as I referenced earlier in describing the recusal process at the Supreme Court, it is always done with consultation with the other Justices. So I promise you that if I were confirmed and if an election dispute arises—both of which are ‘ifs’–that I would very seriously undertake that process and I would consider every relevant factor. I can’t commit to you right now for the reasons we talked about before, but I do assure you of my integrity and I do assure you that I would take that question very seriously.
For a brief moment, the unshakeable exterior of Saint Amy was pierced. A viewer could see that she grasped that her lead selling point—her unassailable goodness—could actually be doubted by Americans, even some who are not Democrats and that her name might be besmirched at the outset of her tenure.
It was oddly moving to see this hitherto-unruffled nominee visibly wrestling with a legal and ethical problem. I say that not simply because it has not happened in the Barrett hearings before, but because it has rarely happened, in my years of watching these hearings, at all. The ideal nominee’s demeanor is a mixture of bonhomie and opacity—a luxury auto salesman’s air of being utterly candid while giving absolutely nothing away. Barrett is as much a master of the blank affect as were Sonia Sotomayor, Kagan herself, or Neil Gorsuch.
But on Tuesday, she was visibly troubled by Coons’s question and its tacit challenge to her integrity. And while that was, in a human sense, poignant, I suggest we not read into it even the likelihood that a Justice Barrett would withhold her vote from the Trump side of an election dispute if that vote were needed. That’s because history suggests that recusal looks oddly different from the viewpoint of a Justice comfortably ensconced in chambers than from that of a designee yearning for office. William Rehnquist, while still an Associate Justice, cast the deciding vote in a case called Laird v. Tatum. The case was a challenge to a secret Army Intelligence program of monitoring domestic anti-war groups. Rehnquist was head of the Justice Department’s Office of Legal Counsel when the program was approved, and his recusal was considered an obvious necessity by legal ethics experts. Rehnquist’s vote, and the ensuing controversy, impelled Congress to tighten the recusal statute and remained an issue in 1986 when he was nominated as Chief Justice.
As for Barrett’s revered mentor, Antonin Scalia, refused to recuse himself from a case against then-Vice President Dick Cheney, despite a formal motion to do so. He and Cheney were not only friends but had recently taken a hunting trip together. Scalia dealt with the “appearance of bias” issued by expressing contempt for anyone stupid enough to question his integrity. He later boasted that refusing recusal was one of his proudest moments on the bench.
So the question may look very different a month from now. But Tuesday’s moment, nonetheless, gave us a brief peek at a real human being openly wrestling with a moral dilemma. It is a moment that left me more, not less, puzzled over my single overarching question about the Barrett nomination. This nominee is being wedged onto the Court by an abusive, dishonest, vulgar presidential monster, who has promised how she will rule on important issues. It is being rammed through the Senate by Republican leadership that scant moments ago was proclaiming as Holy Writ the rule that no Justice should be confirmed in an election year. This judicial coup is being accomplished by a “process” that is not simply irregular, and indeed politically illegitimate, but potentially as epidemiologically disastrous as was the surreal unmasked ceremony at which her nomination was announced. Even 88 of her Notre Dame colleagues (none from the law school) pleaded with her, in a letter today, to stop the reckless rush to confirmation.
At the center of this moral swamp is St. Amy, a person whose life gives many real evidences of high morals and deep faith and good works.
Why would such a person lend herself to such a tawdry charade?
I was raised with the same Bible as she, and as I recall, that book tells us in no uncertain terms that it profiteth no one to gain the world and lose a soul. Not even gaining a life’s ambition is worth that sacrifice.
Having had a glimpse of the real person behind the mask, I remain puzzled. I will not know the answer until it is far too late.
