Barrett Won't Pull Away From Trump's Coattails

           President Trump’s Supreme Court appointee, Judge Amy Coney Barrett, asked the Senate Judiciary Committee last week [Oct. 14] to trust in her independence and integrity if confirmed to the Court. Barrett’s evasions on any questions touching on Trump’s views, however, provide good reason for doubting her independence from Trump if seated to join the five other Republican-appointed justices.

            Barrett made her plea as Democratic senators, including Delaware’s Chris Coons, pressed for a promise to recuse herself from the election-related litigation that Trump promised to bring to the Supreme Court almost in the same breath as he was nominating Barrett. “I certainly hope that all members of the committee have more confidence in my integrity than to think I would allow myself to be used as a pawn to decide this election for the American people,” she said on Tuesday [Oct. 13], in the first of her three days of questions from the Republican-majority committee.

            The recusal issue was one of at least five lines of questions from Democrats that gave Barrett easy options to pull herself away from Trump’s coattails. But she begged off on each one, by hiding behind the need to avoid opining on what she described as “contentious” public policy issues or on legal questions that might come before her as a  justice.

            Her non-answer on the recusal issue was especially inane. She promised not to make the decision for herself but to decide only after consulting with her colleagues—supposedly the standard practice for justices pressed for recusal because of some possible conflict of interest. It must be noted that the Roberts Court has divided along partisan lines in several election-related cases over the past year.

When Trump v. The American People reaches the Court, the five Republican-appointed justices, including Trump’s previous two appointees, may well want or need Barrett’s vote to solidify a majority for the petitioner president. Indeed, think back to Bush v. Gore when Justice Sandra Day O’Connor, a Bush supporter, gave the Republican-appointed conservatives the needed vote to end the Florida recount that might have cost Bush the election.

Republican senators offered Barrett a rationale for non-recusal in the eventual Trump case by noting that President Clinton’s two appointees, Ginsburg and Breyer, were not pressed to recuse themselves several years after their appointments when Clinton v. Jones reached the Court. In fact, Ginsburg and Breyer both voted in the eventually unanimous decision against Clinton’s plea for immunity from civil lawsuits while serving as president.

The other issues that Barrett ducked included voter intimidation, climate change, systemic racism, and the president’s pardon power. Barrett must have seen that the easy answer to each of those questions would have generated mini-headlines separating herself from Trump’s positions. In that regard, it is worth recalling that as Supreme Court nominee, then-Judge Neil Gorsuch showed at least enough integrity to distance himself from Trump’s criticism of the “Mexican judge” who was presiding over the civil lawsuit against Trump University.

Minnesota’s Amy Klobuchar noted to Barrett that the Trump campaign is recruiting individuals with “special forces” experience to act as poll watchers on or before Nov. 3. Klobuchar asked, in effect, whether the presence of armed poll watchers would amount to voter intimidation under federal law. Barrett hid her non-answer behind a legalism. “I can’t characterize the facts in a hypothetical situation,” she said.

Barrett was similarly agnostic when asked whether she believes that climate change is occurring, as all reputable scientists believe. Barrett surely knows that her presidential benefactor has described climate change as “a hoax.” Had she indicated agreement with scientists instead of with the non-scientist Trump, the headline writes itself: “Barrett Clashes With Trump on Climate Change.”

Barrett similarly avoided directly acknowledging to New Jersey’s Cory Booker the presence of systemic racism in the criminal justice system today. Again, Trump and his attorney general, William Barr, have resisted any generalized acknowledgment of racism in criminal justice. With her non-answer, Barrett aligned herself with the Trump administration non-position.

With Trump under investigation for possible criminal prosecution by the New York City district attorney’s office, Trump might be considering trying to pardon himself as he leaves the White House after failing re-election. Under questioning by Vermont’s Patrick Leahy, Barrett declined to opine on what she called “an open question” about the president’s self-pardoning power. Still, she might at least have quoted the centuries-old Latin maxim “Nemo judex in causa sua” (no one can be a judge in his own case) as casting doubt on the supposed self-pardon power.

Barrett was given another opportunity to demonstrate her integrity in an open letter signed by more than 80 Notre Dame faculty members urging her to withdraw from the nomination altogether because of what the academics called “the anti-democratic machinations driving your nomination.” Barrett was not asked about the letter during the hearings and has said nothing on the record even to indicate that she has read it. Suffice it to say that one way to prove her integrity would be to renounce the reward that Trump has offered her in a Faustian bargain.