Republican hypocrisy on Amy Coney Barrett is destroying Supreme Court
Category: News & PoliticsVia: john-russell • 2 weeks ago • 42 comments
By: Donald B. Ayer and Alan Charles Raul (USA TODAY)
Republicans are using a deeply unfair process to confirm Supreme Court nominee Amy Coney Barrett. Build faith in democracy by letting the people decide.
Donald B. Ayer and Alan Charles Raul Opinion contributors
When a vacancy on the Supreme Court arose nine months ahead of the election in 2016, Sen. Mitch McConnell said in no uncertain terms: "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President."
Now, after the death of Justice Ruth Bader Ginsburg less than two months before Election Day, as voters are already casting ballots in many states, McConnell has reversed his position. His naked hypocrisy threatens the future credibility of our federal judiciary.
Our opposition is not partisan, quite the opposite. We served at upper levels of government inside Republican administrations and we are united in our opposition to the rushed nomination, hearing, and confirmation of Judge Amy Coney Barrett to the United States Supreme Court. Our concern is not related to the qualifications of Judge Barrett. Rather, we believe that the process being pursued is fundamentally unfair and will greatly undermine public trust upon which our democracy depends.
Turning SCOTUS into political game
Indeed, if Senate Republicans force Judge Barrett through in the waning weeks before a presidential election — after denying President Obama any opportunity for Senate consideration of his nomination of Judge Merrick Garland nearly a year before the 2016 election — the American people will unavoidably see the Supreme Court as just another forum for power politics and political players.
The legitimacy of the judicial branch rests on the principle that judges are independent and unbiased interpreters of the law. A fair process for nomination and selection is crucial to preserving a public perception of the Justices of the Supreme Court as neutral jurists, rather than pawns of the political process. In fact, if this Republican power play succeeds, the Chief Justice's recent reaffirmation that "We do not have Obama judges or Trump judges, Bush judges or Clinton judges" will be made quite untenable.
Whatever one thinks of McConnell's action in 2016 to deny any consideration to President Obama's nominee, Merrick Garland — and we think it was clearly wrong — an action now to proceed with a Republican nominee for a vacancy arising less than two months before the election would flatly violate the principle McConnell announced then to justify the action he took. When McConnell set a new standard for how the Senate would proceed with a Supreme Court vacancy in a presidential election year, the American people understood that this new rule would be applied consistently should another vacancy to which it clearly applies arise on McConnell's watch.
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By going back on his word, McConnell's arbitrary application of rules obliterates any pretense of any justification except the bald pursuit of power. It is flatly inconsistent with the vision of our founders that our government would be made legitimate because it was trusted by and accountable to the people. And if left unchecked, Senator McConnell's move — and the complicity of every Republican Senator who refused to consider Merrick Garland's nomination in 2016 but will go along with a vote now — will powerfully testify that the Republicans who control the Senate have no respect for the consistent application of legal rules, but seek only to maximize their own power.
Losing faith in our democracy
If the Senate moves forward with Barrett's confirmation with such crass and naked hypocrisy, then more people will lose faith in our democracy. And as we've seen throughout history, democracies crumble when people lose faith in them. Just think of the consequences for credibility if an election-related dispute makes its way to the Supreme Court and the vote of a newly installed Justice Barrett decides the case.
Sometimes the rule of law calls for restraint in the exercise of lawful power in order to assure public confidence and respect. Greater comity — or self-restraint in pushing political power to the max — strengthens American democracy and makes our institutions more successful.
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In today's partisan and polarized world, it's easy to resign ourselves to cynicism. But all we need is for the esteemed members of the Senate Judiciary Committee to refuse to hold a hearing for any Supreme Court nominee before the election on Nov. 3 in order to set things right. If that fails, then just two more Republican senators could slow the march toward further politicizing the court.
If the Republican Senators bind themselves to the principle that they themselves invoked four years ago — to let the people decide — then they will advance the people's faith in democracy. If not, then they will undermine it. For all our sakes,we hope they make the right decision.
Donald B. Ayer (@DonaldAyer6) served for 10 years in the Department of Justice, including as U.S. Attorney and Deputy Solicitor General under President Ronald Reagan and as Deputy Attorney General under President George H.W. Bush. Alan Charles Raul was appointed to senior legal positions by Presidents Reagan, Bush and George W. Bush, and as Associate White House Counsel worked closely on the Supreme Court nomination of Antonin Scalia.