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Justice Amy Coney Barrett’s hearings revealed the risks facing our judiciary

<p>Photo Courtesy of Joe Ravi / <a href="https://commons.wikimedia.org/wiki/File:Panorama_of_United_States_Supreme_Court_Building_at_Dusk.jpg" target="_self">Wikimedia Commons</a></p>

Photo Courtesy of Joe Ravi / Wikimedia Commons

In a recent CNN column, Thomas Koenig ’20 expressed concern for the then-upcoming confirmation hearings of President Trump’s nominee to the Supreme Court, Justice Amy Coney Barrett. He wrote about his dread for the partisan spectacle that would ensue.

With these turbulent waters behind us and by virtue of hindsight, I am inclined to say his assessment was spot on. Senators raised accusations, questions were asked and dodged, and many took the opportunity to proudly campaign through 30 hours of free national TV. 

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Koenig further argued that a voter could be “a principled supporter of Biden and Barrett” if they managed to examine her case beyond the hearings’ drama. While I will stop short of endorsing or condemning this view, I agree that Justice Barrett’s hearings prevented us from evaluating her merits on their own, and potentially arriving to conclusions like Koenig’s. This criticism I direct at Republicans and Democrats alike.

While it isn’t new for judicial hearings to be drawn out and stuffed with party politics to the point of pointlessness, the hearings’ events and circumstances are notable for the refusal to change to a remote format and the hypocrisy aired through them. 

To start, it was entirely inappropriate to hold such a well-attended hearing in person — let alone for 30 excruciating hours — during a pandemic ravaging this nation. Even though social distancing measures were in place, and mask use was somewhat regular, crowded indoor events still pose a significant transmission risk

This is especially worrying given the multiple outbreaks that have occurred recently among federal officials. The hearings’ leader, Sen. Lindsey Graham, has notoriously refused to comply with basic precautions, such as testing.

The whole affair could have been shorter — a small mercy that both Democrats and Republicans could have granted us. The entire first day of hearings was filled with five hours of opening statements that repeated the same tired and inconsequential takes ad infinitum. Republicans took turns shaking their fists at the Democrats for allegedly undermining the rule of law. In turn, Democrats decried the Republicans’ hypocrisy, given Merrick Garland’s failed nomination four years ago, all this while surrounded by an iconostasis of pins and picture books of the late Justice Ginsburg. It was truly baffling to see her legacy put to such a use. 

The following days of questioning were long, tedious, and counterproductive. Many questions were unbecoming of a functional hearing — though regrettably this has been the norm these days. Notably, Sen. Graham took this as an opportunity to brag about how “unashamedly pro-life” the nominee was, and how her confirmation would be a breakthrough for conservative women.

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In turn, Democrats such as Sen. Kamala Harris played a fruitless game of entrapment, trying to deduce her opinions in policy, precedent, and even leveraging thinly-veiled accusations of racism. While many of the issues discussed here are of paramount importance to myself and many others, they assume — and therefore expose — an overtly politicized court. 

Justices are not policymakers, and while their opinions may be important, it is their job to set them aside as they make decisions on a case-by-case basis following the law. Justice Barrett was perfectly within her right to remain within the bounds of the so-called Ginsburg Rule: “No hints, no forecasts, no previews.”

To insist that the nominee provide her opinions on such matters is to assume that justices are policymakers with agendas, such as seeking to overturn certain precedents. Even if one takes a “Living Constitution” approach to constitutional interpretation, this notion of justices as policymakers is troubling and mistaken. Furthermore, studies have shown that justices do not behave in ways which are loyal to their appointers, nor seek to do their bidding on key issues, even when politicians assert they will. 

Justice Barrett’s background and record, while notably Catholic and conservative, need not be the end-all, be-all of her jurisprudence. Justices are tasked every day of their vocation to set aside any biases they might have and rule based on the law. Justice Barrett has recognized this fact, and has even stated that, if necessary, Catholic judges should recuse themselves from cases that may conflict with their beliefs, such as those involving the death penalty.

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While many saw this as revealing her deep bias, it is nothing more than a prudent measure to ensure that the law prevails over all else. For this reason, inquiries that seek to disqualify nominees on the basis of religion and personal beliefs are merely politicking, and not conducive to a definitive proof of the candidate’s qualification. Our very own President Eisgruber ’83 rightly stated that such religious tests can even be unconstitutional, in a letter regarding Justice Barrett’s confirmation hearing to the Seventh Circuit.

The Merrick Garland fiasco has also been a major point of contention. Democrats have repeated this injustice again and again as a reason why Justice Barrett should not be confirmed at this moment. While Republican actions in 2016 were nothing short of despicable, they resulted from years of bipartisan meddling with Senate majority voting rules.

Suggesting that the same be done for Barrett as retaliation is to keep participating in the continuous erosion of Senate procedure that is vital to allow for the deliberative body to function as it should. The more Senators invoke nuclear options and retaliations, the deeper petty partisanship and division are etched in the Senate’s floor. 

In the end, despite the highs and (mostly) lows of this pompous political spectacle, and the repeated efforts of both sides to undermine each other, Judge Barrett’s apotheosis into the most august pantheon of jurists was consummated this week. Now that the deed is done, we must examine Justice Barrett’s record and jurisprudence standing on their own.

Her association with a shameless, ruthless, and rushed process has prevented us and most of the media from accurately assessing how she will behave in the Supreme Court. Her confirmation is not a death sentence for reproductive and LGBTQ rights nor healthcare. 

Justice Barrett is, undoubtedly, a conservative jurist, but she is a careful one, too. Caution and restraint are the defining traits of a Supreme Court justice who prioritizes consensus over ideology, which is why most of their decisions are made in unanimity.

This type of restraint was shown recently by conservative Justices Clarence Thomas and Samuel Alito ’72, who refused to hear Kim Davis’ case against same-sex marriage despite it being an opportunity to overturn Obergefell with their newfound majority. We can expect this kind of restraint from Justice Barrett as well, and ultimately it is better to rely upon it than engaging in questionable practices such as court packing, which would further politicize and delegitimize the court.

Let us take time to shed tears or rejoice as we like, but let this be something more than a partisan victory or loss. This whole process, its antecedents and future consequences, should serve as a reminder that despite whatever political idiosyncrasies originalist and evolutionist judges may have, as may their relative presence in the court, meaningful and lasting change rests in the voter’s hands. 

Americans have voted in such divisive ways that have made the political establishment turn to the court as a possible asset to help either party prevail over the other. This is not what the Court was meant to or should do, and it is imperative for Americans to find consensus and vote in a way that will make Washington cease the political plays and theater around the Court.

Our democracy is in our own hands. I implore my fellow Princetonians to return the courts to their apolitical, constitutional nature through their future careers in government and — most importantly — their votes.

Juan José López Haddad is a junior in the School of Public and International Affairs from Caracas, Venezuela. He can be reached at jhaddad@princeton.edu.

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