Tuesday, September 29, 2020

Are Trump's Justices Tainted?

by Michael C. Dorf

I am not a political strategist, but if I were, I would advise Senate Democrats not to engage at all with the merits of Judge Amy Coney Barrett as a Supreme Court nominee. Do not question her about her judicial philosophy, do not parse her record as a judge and a scholar for indications of how she would decide cases on the Supreme Court, and by all means do not ask what she believes the role of precedent in constitutional cases should be. Such inquiries have become futile in the best of circumstances, and we are currently in the worst of circumstances. Posing questions to Judge Barrett as though she were just another nominee risks normalizing her nomination.

There are also reasons to think that Judge Barrett will come across on tv as much less scary to civil rights, civil liberties, and effective government than her record indicates she will be as a Justice. She's smart, highly personable, and by all appearances has led a very admirable private life. Democrats who engage with her on the merits are unlikely to "win" their exchanges.

To be sure, I see no evidence in Judge Barrett's writings as a law professor or judge that she is the once-in-a-generation genius that Harvard Law Professor Noah Feldman thinks her to be based on their friendship when they were both in their twenties. Feldman's colleague Professor Mark Tushnet comes much closer to the mark when he implies that Barrett is "perfectly competent" and "has done some interesting scholarly work." But Professor Tushnet adds that this conclusion is hardly disparaging, which is true. If the question is professional qualifications, Judge Barrett clearly has the requisite ones. Academics like Professor Feldman who are, in Professor Tushnet's tough but fair assessment, "sucking up to power," deserve to be pilloried for their hyperbolic sycophancy, but no one should mistake the argument against Feldman for an effective strategy for combating Judge Barrett's confirmation.

Instead, Democratic Senators should simply follow the precedent set by Senate Republicans with respect to Judge Merrick Garland and ignore Judge Barrett. Ignoring Judge Barrett would not mean ignoring the nomination. Democratic Senators could use their allotted questioning time to give speeches denouncing their Republican colleagues for their hypocrisy. Doing so would be more than justified, as Justice Ginsburg's death occurred much closer to the 2020 Presidential election than Justice Scalia's occurred relative to the 2016 election--and the transparently post hoc rationalizations offered by Republican Senators trying to reconcile their current stance with the position they took in 2016 are laughably bad.

Even so, Democratic Senators should direct their complaints at Republican Senators and Trump, not at Judge Barrett. In the past few days, I have seen a suggestion on Twitter that an interview that then-Professor Barrett gave in 2016 shows her endorsing the view that Senator McConnell then took that the Senate oughn't confirm a Justice in an election year--but having watched the full interview, I must say that's not an accurate characterization. Most of the interview is about Justice Scalia. When asked about the don't-confirm-in-an-election-year view, Barrett gives an answer that is essentially descriptive and denies that there's any "rule." In ignoring Judge Barrett and going after President Trump and their Republican colleagues for hypocrisy, Democrats can make clear that they have nothing personal against Judge Barrett.

Will it work? If the goal is to stop the confirmation, no, of course not. But that doesn't mean that some combination of boycotting and calling their Republican colleagues hypocrites would serve no useful purpose for Senate Democrats. Supreme Court confirmation battles are political exercises, and the main goal of Democratic Senators should be to motivate Democratic voters to turn out for the Presidential election in sufficient numbers that Biden wins by such a wide margin that Republican elected officials do not cooperate with Trump's efforts to delegitimize the result and thus provide a fig-leaf for his efforts to circumvent popular rejection. A secondary goal might be to lay the groundwork for Court packing or some other very substantial reform, should Democrats have the numbers and inclination to pursue it come January. 

What about Judge Barrett going forward? How should she be viewed? By that question, I don't mean how should her jurisprudence be viewed. I will surely disagree with her in nearly all of the highly contested cases the Court decides. What I mean is something more like this: Should Judge Barrett's acceptance of the Supreme Court nomination taint her personally? Is she tainted in virtue of her cooperation in a game of constitutional hardball played by the Republican Party? The GOP represents a minority of the national population, but thanks to a Constitution that overvalues the votes of older whiter constituencies, it has been able to control the Presidency and the Senate, and has pushed those levers of power to secure control over the judiciary as well.

One can pursue the same question of taint with respect to Justice Gorsuch. If it was illegitimate for the Republicans to hold open the Scalia seat, then a person with integrity oughtn't to accept a nomination to fill it. Whether the same logic applies to Justice Kavanaugh is less clear. If Republicans had not blocked Judge Garland's nomination, then President Trump's first legitimate nomination would have been to the Kennedy seat, which would have been filled by Justice Gorsuch, so Justice Kavanaugh only got his seat thanks to the McConnell ploy.

How might one defend Barrett, Gorsuch, and possibly Kavanaugh against the charge that by taking an undeserved seat they are cooperating in an illicit scheme to subvert the appointments process? The most straightforward answer would be to deny the premise. In this view, Republicans are entitled to play constitutional hardball, just as the Democrats are. That's pretty close to what then-Professor Barrett said in 2016, although perhaps we might better understand her to have said that it's expected that each party would play constitutional hardball. Even if that's so, however, we might understand her view--and presumably the view of Gorsuch and Kavanaugh--to be that there's nothing tainted about the seat.

Of course, that's not everyone's view. Suppose you think (as I do) that the Senate Republicans were wrong to hold open the Scalia seat and that, having done that, they're now wrong to fill the Ginsburg seat. Might you nonetheless think that Trump's nominees were warranted in accepting?

One potential justification comes by way of my friend (and former student) Father Bill Dailey, who tweeted the following last week: "If you can do a job well and a terrible president asks you to do it, you should do it, more urgently than if a good president asks, so that you can protect us from the bad people who like the terrible president." I expressed a similar sentiment after the November 2016 election when I wrote:

If you are a principled conservative who opposed Trump's candidacy for any of the many excellent reasons there were to oppose it, PLEASE consider seeking and accepting a job in the Trump administration. We have a unitary executive in principle, but in practice it takes a great many people to run the government. If principled conservatives decline to serve in a Trump administration, it will be filled with servile hacks. Working in the government, you can better advance the rule of law and other values you hold dear than by standing outside and criticizing. In any event, we liberals will be doing plenty of that.

I believe that was sound advice at the time and maybe even in retrospect. It's true that the people with integrity who tried to rein in Trump's worst instincts -- especially H.R. McMaster and Jim Mattis -- ended up leaving the administration, but they arguably did some good while they were in their positions.  Still, one might object that the point I was making applies, if at all, only to executive branch appointments, not to judicial ones as well.

That's probably wrong, however. If every person of character refuses a Supreme Court nomination, a determined President will nominate people with fewer scruples who, when faced with cases in which their principles are put to the test, fails. I say the judgment is only "probably" wrong, however, because there are circumstances in which a principled refusal could change the entire calculus. If all principled conservatives were to decline Trump's Supreme Court nomination, he would need to turn to a truly hackish nominee, who might not be confirmed. Still, I think it is fair for someone like Judge Barrett to think that if she refused the nomination, Trump would still be able to fill the seat without turning to the likes of Jeanine Piro, Laura Ingraham, or some other FoxNews talking head who happens to have a law degree.

But that's hardly a justification for Barrett's accepting the nomination. If a mob boss asks you to kill one of his rivals, you would not be justified in doing so on the theory that if you say no he'll simply ask someone else to do the job, even if you but not the other hitman would donate half the proceeds from the job to charity. There are some things one simply oughtn't to do on principle, regardless of whether that stops others from doing them instead.

That principle applies in a great many domains. It's the objection that the Little Sisters of the Poor had to filling out the form seeking an exemption from providing health insurance that covers a kind of contraception they deem tantamount to abortion. Whether or not they filled out the form would not affect whether anybody actually got such insurance, but they felt that doing so would render them complicit. Maybe you think, as I do, that the Little Sisters have a view of complicity that is simply too far-reaching for the law to accommodate. Fair enough, but from their perspective, it's hardly a response to the feeling of complicity that if they don't sin someone else will.

Here's an example that might be more relatable for most of my readers: if one has a conscientious objection to participating in war, the objection does not disappear simply because the government will likely draft the next person on the list. As a general matter, participation in evil is impermissible even when non-participation would not prevent the evil.

I recognize that the foregoing has a fairly hypothetical cast, given that Judge Barrett almost certainly does not regard the GOP strategy with respect to the Scalia and Ginsburg seats as evil. So let me put the point differently. Let's put aside the question of cooperation with the McConnell strategy and focus on cooperation with Trump, a narcissistic racist, tax cheat, liar, and would-be dictator who wishes to fill the current SCOTUS vacancy before the election is over in the hope that his newest appointee will vote his way in the post-election litigation he will initiate or catalyze to fatally undermine American democracy. Surely accepting a nomination from such a man under such circumstances counts against one's character.

To be clear, I am not saying that everything a president does taints the president's appointees. Justices Burger, Rehnquist, Powell, and Blackmun were not tainted by Watergate, nor were Justices Ginsburg and Breyer tainted by efforts to cover up the Lewinsky affair. But despite their substantial flaws, Richard Nixon and Bill Clinton were conventional presidents with some considerable sense of patriotic duty; neither of them was the monster that Donald Trump is.

Moreover, all of Nixon's appointees (except Rehnquist, who was recused) voted against him in the tapes case, just as Clinton's appointees voted against him in the Paula Jones case. Will Trump's appointees show the same courageous independence if and when Trump's fate is in their hands? Perhaps the performance of Justices Gorsuch and Kavanaugh in the subpoena cases last Term (joining the bipartisan majority in the congressional case and concurring in the judgment in the NY grand jury case) is a hopeful sign.

The bar for soon-to-be-Justice Barrett to demonstrate independent character is high, not only because she accepted a nomination from an execrable man but because she allowed herself and her family to appear as props in the execrable man's despicable political show--a packed Rose Garden ceremony in which none of the participants or observers was visibly masked or practicing social distancing and that projected a grotesquely inappropriate sense of business as usual. As Dahlia Lithwick wrote in Slate.

it must be excruciating to stand next to the most contemptible president in history, knowing you wouldn’t leave your teenage daughters alone in a room with him, pretending he is worthy of the office he holds. It must be brutal to have two cherished children adopted from a country that same president described as a shithole, and still pretend that he is fit to serve.

Or at least one hopes that the nomination ceremony was excruciating and brutal for Barrett, who smiled through it. The best that can be said for Barrett's comportment of herself under the circumstances is perhaps she was grimacing but only on the inside for fear of offending her new benefactor before she is confirmed. After all, the Snowflake-in-Chief reportedly sought to rescind his nomination of then-Judge Gorsuch because Gorsuch had the backbone to mildly criticize Trump's attacks on the judiciary before he was confirmed. Barrett may have learned a lesson from the fate Gorsuch apparently only narrowly avoided.

Thus, despite all of my criticism I'll include a note of very faint praise for Judge Barrett: In her kowtowing to Trump, at least she did not sink as low as then-Judge Kavanaugh, who offered the following obsequious and preposterous (and also self-aggrandizing!) praise when accepting his nomination: "Throughout this process, I’ve witnessed firsthand your appreciation for the vital role of the American judiciary. No President has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination."

But that is meant to be faint praise. If Barrett is to justify her accepting this nomination from Trump, she will need to forcefully demonstrate independence from him and his democracy-thwarting plans. There is a decent chance she will have an opportunity to do so soon.