I’ve got a question that Democratic senators might have considered posing to Amy Coney Barrett on the occasion of last week’s hearings before the Senate Judiciary Committee: What’s a nice woman like you doing keeping company with a bunch of fascists like this?
That’s perhaps a bit flip, but the substance remains: At what point does someone like Amy Coney Barrett — at what point do all the judges to whom Trump has granted lifetime appointments — take responsibility for who made them? More important, to what extent can citizens trust the jurisprudence of people who, like Barrett, swallowed hard and accepted these appointments from someone so obviously illiberal, so clearly unfit for the job, someone who (lest we forget) was impeached not 9 months prior, someone who subsequently mismanaged and repeatedly lied to our faces re. a public health crisis (out of pure political self-interest, to the tune of hundreds of thousands of Americans dead), someone who (according to Mueller report) would have been charged with 10 counts of obstructing justice were he not a sitting president, someone who refuses to disavow white supremacists, someone who apparently ran up hundreds of thousands in tax bills to foreign countries while paying next to no taxes in his own (during his presidential term!), someone who is essentially an unindicted co-conspirator in a felony to secure a second term by stopping the count of mail-in/absentee votes — something he has told us he is going to do! He also awarded Rush Limbaugh the Medal of Freedom. A superb judge of character, our president.
It would be naïve to ask, “What does it say about Trump that he has openly cited the need for Barrett to be on the high court in time to provide him a 5-4 decision, a la Bush v. Gore in 2000, should a disputed election be flung into the courts?” We know why. He’s incorrigible. But this misses the larger, more immediate point. What does it say about Barrett that she’d accept this man’s nomination — then refuse to discuss her recusal during the Senate’s advise and consent process?
Should we succeed in unseating Il Douché, we as a people will be obliged to confront the incredible damage he and his administration (and his followers) have to done to the United States, its culture, its comity, its government, its legal norms and infrastructures. Addressing and mitigating this damage is already underway — witness the discussion of SCOTUS expansion, of 18-year terms on the high court, of statehood for D.C. and Puerto Rico (to remedy the undemocratic concentration of power in 20-odd sparsely populated farm states, many of them literally manufactured in the late 19th century to, wait for it, boost the electoral power of the Republican Party). There is little question from either side that Biden will win the popular vote in two weeks time. If we are fortunate enough to see that vote reflected in the Electoral College (our most troubling monument to dead Confederates), there will surely be a roll-back of executive actions this administration has backed — a fairly common occurrence when one administration is replaced by another.
But the undermining of U.S. law and legal precedents by Trump appointees extends to the government bureaucracy and its courts. This man’s enablers, those he installed, must be identified and held to account. Amy Coney Barrett is a good place to start.
I’m 56 years old. Reckoning with this successful attempt to pervert and circumvent our legal system will dominate our politics for the remainder of my lifetime. I recognize the Federalist Society and movement conservatism predate Trump’s inauguration. But the president has bared and magnified the naked, reductive politics at play here, for all to see. As such, for decades to come there will be ongoing reference to and spotlighting of the 300-odd judges that Trump nominated and Mitch McConnell forced through the hyper-politicized Senate from 2016-2020 (after slow-walking Obama nominees for 8 years).
What we do with Brett Kavanaugh, Neil Gorsuch, Barrett and their Trump-nominated, lower-court brethren remains to be seen. But their lifetime appointments, from Trump, expose them to a different sort of long-term scrutiny. It’s not going to go well.
Some individual judges will perhaps adjust and move away from Federalist Society-approved originalism and other specious stances undergirded by right-wing, white supremacist, and moneyed interests (methinks Judge Roberts is doing this right now). Others will not. Dealing with this latter group of true believers, and their blinkered attitudes toward precedent, and the legacy of the demonstrably fascist figure who nominated them, will be difficult.
But it will have to be done and the particular case of Amy Coney Barrett is a logical, timely place to begin this effort. If it requires her tarring and feathering, so be it. She has made her bed.
Some senator should have urged her to simply withdraw. “You don’t want to be the face of Trumpism going forward,” Amy Klobuchar should have told her on Monday, Oct. 12, the day hearings began. “You seem like a nice person. Don’t put your family through this. Because, you know, there’s a name for people who do the bidding of fascists and accept their patronage… They’re called fascists.”