Anything But Supreme

Anything But Supreme

I am resigned to Amy Barrett being confirmed to the U.S. Supreme Court today. The Republicans who control the Senate are determined to get their last round of stacking the deck before they lose face the possibility of losing control of our national government in just eight days.

At some level, this is a mere continuation of a pattern of zero-sum politics that has marked the party since the rise of its Tea Party faction in the 1980s. They have willingly ignored the established procedures of the confirmation process, some of which they themselves created, and have rushed through a series of federal and state court appointments based almost entirely on political ideology.

A number of their cronies have been so lacking in qualifications that their nominations ultimately had to be withdrawn. Others were promoted to the federal judiciary despite the fact they had no real experience on either side of the bench. And then there have been those whose character was so tarnished that their mere presence on the federal judiciary brings it shame. Brett Kavanaugh is the poster boy for such paucity of character not to mention white male entitlement.

Amy Barrett’s nomination is as blatantly political as the Bush v. Gore decision which placed another entitled white male in the presidency was 20 years ago. Everyone knows this even as some make half-hearted attempts to deny it.

While Barrett appears to be intelligent and has a record as a capable professor at the Notre Dame University law school, her nomination was not driven by those factors or by her virtually non-existent experience as a federal judge. Rather, she is simply the latest of a series of nominees who passed the ideological litmus test generated by the Koch Brothers funded Federalist Society. In short, she is being placed on the bench not because of her qualifications but rather because of her willingness to serve the interests of those who have made her nomination possible.

Ironies Abounding

There is no small irony that this pattern of nominations would arise from the folks who have been the most outspoken about “political correctness.” What could be a better example of political correctness than restricting appointments to courts to only those with approved views insuring that the politically correct understanding could be imposed on all of society through the power of the courts?

There is also no small irony that this last-minute confirmation on the eve of a general election in which the nominator stands a fair chance of losing his presidency would also be the work of those who so loudly scream about the potential for court packing by that president’s successor. What could be a better example of court packing than the flood of new judges who have passed the Koch Brother’s Federalist Society litmus test regardless of their experience or qualifications, much less their disposition toward impartiality, and with little more than a wink and a nod toward serious screening by the Senate?

Finally, there is no small amount of depravity in this behavior of Republicans - who for the moment still control the Senate - to rush through a confirmation to stack the Supreme Court. It is troubling that the agenda here is possibly the very purpose of delegitimating an election which appears increasingly likely to reject the current occupant of the White House who named this woman to the Court. She could be his ace in the hole to prevent being dethroned.

Surely our countrymen and women cannot be this unobservant or indifferent.  

The Republican leaders of the Senate had previously stated as “principle” that no SCOTUS nominee should be considered by the Senate on the eve of a national election. It was unprecedented, a departure from historical practice at the time. As a result, Barack Obama’s highly qualified nominee, Merrick Garland, never even saw the interior of the Senate Judiciary Committee meeting room. But a default to principle was never even momentarily considered in the rushed process to stack the courts with yet another ideologue this time.

Clearly, principle means little to those lacking in the same.

But a repudiation of principle can have impacts beyond the current exercise of expediency. A court system stacked with ideologues could well mean the retardation of any kind of evolutionary process a country desperately needing to leave behind a fading paradigm might need. An ideologue stacked court which protects the interests which created it quickly loses any sense of legitimacy. At a time when our nation and world is facing existential crises, what we need from our courts is wisdom, not political skullduggery. 

In principle I have long opposed expanding the Supreme Court or limiting terms of justices, especially as a means of pursuing political goals. But that presumes an even playing field on which competing ideas could be heard on their own merit. It presumes a system in which principle is valued. Sadly, it’s been a long time since that was the case. And today’s confirmation only digs the ideological wounds of a once venerable court system even deeper. Whether we can repair this damage remains to be seen.  

The court system I had so admired as a child, studied as an undergraduate and had gone to law school to serve bears little resemblance to the politicized system I encounter today. And sadly, it is but one aspect of a massive poisoning of our democratic system. 

The power of dark money has been able to destabilize our electoral system and stack the decks in state governments and federal agencies. Now it is poised on brink of a coup de grace, the placement of yet another Federalist Society ideologue on the SCOTUS which will protect the interests which generated that dark money with a controlling majority on the Court.

Arguments from the Bubble…

I have to confess, as a man who has given my life to serving this country, I find this new reality almost incomprehensible. But it did not arise in a vacuum. This week I received two communications on social media that provide me with some idea as to how this happened.

The first came from a long-time friend whose private message to me began:

An elected official has the obligation to take advantage of his entire term and use his best judgment on issues as mandated by the citizens who chose him to lead or represent them. Why then, should any elected official abdicate that responsibility during the last two three four or five months of his duly elected term?... Do you in your heart of hearts think that if the current situation were reversed that the Democrats would not also do all they can to get their person on the SC?

Of course, the language itself is somewhat revealing. Why should elected officials “take advantage” of situations in which tradition and established procedures – not to mention honesty and integrity - dictate restraint? Does such taking advantage include violating promises made by these same ostensibly based in “principle?” If that’s the case, what does “principle” even mean in such a situation? And what does such a willingness to violate principle suggest about the soundness of the judgment of those who violate it by confirming partisan judges?

Moreover, does the elected official sitting in the Oval Office only represent “the citizens who chose him to lead” (Read: His “base”) ? In the case of a Supreme Court justice, does he have no duties to ALL the citizens who will be impacted by the justice’s decisions? And what duties to the integrity of the judiciary with its mission to be impartial?

In all honesty, I do not know what might have happened had the partisan tables been reversed here. That has been increasingly unlikely since the Citizens’ United ruling tipped the political balance in this country into the hands of folks like the Koch Brothers whose judges now sit everywhere from our federal benches to our local school boards. 

I fear the Democrats may also have acted out of expediency rather than principle under the circumstances. What I do know is that the pattern of behavior that we will see playing out today in the confirmation hearing in the Republican dominated Senate is entirely predictable given their behavior over the past couple of decades.

The second communication came from a friend from my childhood in the form of a meme on Facebook. It draws a false analogy between Congresswoman Ilhan Omar (D-Minn) and would-be justice Amy Barrett. There are at least two problems that arise from this.

First, the comparison is very revealing. Ilhan Omar is a congresswoman. Her job is to advocate for her constituents and the best interests of the country. We anticipate that she will be partisan, given our two party, winner-take-all electoral system. In the legislative branch of our government, that’s how they do business.

 But the woman at the top is being considered for a seat on the U.S. Supreme Court. Where the congresswoman is elected in a partisan manner, a justice is expected NOT to be partisan. While it is tempting to see this entire process in zero-sum terms of power, the judiciary has a function that was designed to be different from that of the other two branches. It is deeper in function and broader in scope.

Moreover, a non-partisan judiciary is central to public perceptions of legitimacy. If there is to be even a semblance of justice in a heavily contentious society, courts with impartial judges are the only place that can occur.

That is why the second aspect of this comparison is so troubling. Ilhan Omar is a Muslim. But she is not a fundamentalist. While she has been painted as such by right wing pundits, Omar is as likely to be critical of her own tradition as she is defensive when it is presented in stereotyped caricatures. 

Such is not the case for Amy Barrett in either her personal or her professional lives. Barrett belonged to a fundamentalist sect of Roman Catholicism for many years that emphasized patriarchal values. This is particularly troubling in the light of the powerful, inspiring and brilliant woman jurist whose place Barret would take on the Court.

A toxic patriarchy plays out in many ways from denial of abortions regardless of the circumstances to antipathy toward LBGTQ families and transsexuals. Worse yet, in a time of pandemic, a Koch Brothers’ justice might well be preparing to cast the deciding vote to take away the Affordable Care Act’s limited protections of America’s weakest links, this in the midst of a pandemic that threatens the very soul of our nation.

If it were just her religion, that would be problematic enough. But Barrett, who apparently has a decent mind and is seen by many of her students as a good professor (though a number of her Notre Dame colleagues have opposed her nomination), is an adherent to the legal ideology of originalism. Popularized by the brilliant ideologue Antonin Scalia, for whom Barrett clerked, originalism is ultimately the phenomenon of fundamentalism (which underlies the sect of which Barrett is a member) as it expresses itself in the legal profession.

Originalism would freeze American jurisprudence in the world context of its Framers, much like biblical fundamentalism freezes religious teachings in the context of the 10^th BCE to 2d CE writers from the Middle East, complete with all their worldviews and values. In doing so, it ensures an ongoing protection of the privileges of those whose interests were enshrined in the original constitutional framing.

Originalism operates out of the “Father Knows Best” mentality of patriarchal fundamentalism which privileges males and demands the obedience of everyone else. There is a presumption that the assertions of these forebear males are somehow unquestionable because they are constructed as deliverers of pure truth unimpeded by human frailty or contextual considerations.

Consider: “The Word of the Lord!” “The Word of the Framers!”

Much like the writers of texts that eventually would be included in the canon of Christian scripture, there is no indication that our Framers anticipated their own circumstances would be the context for all future incarnations of U.S. government or that their understandings would come to be seen as revealed truth impervious to question by future generations. Indeed, the process of judicial review written into the Constitution itself evidences their belief that their words would be eventually interpreted by future generations in the context in which they present themselves.

Fundamentalism of any stripe is harmful enough on the members of the bodies where it prevails as the rate of runaway kids and abused spouses in such families readily demonstrates. But when this ideological framework becomes the basis for constitutional interpretation, the entire nation will suffer.

It’s hardly surprising that the kind of mediocrity of character necessary to produce the debacle that will play out today in the placement of yet another ideologue on a court designed to be impartial occurs in a nation whose citizens know so little about its governance. We are not well educated or informed, the prerequisites of a democracy that thinkers from Aristotle to Jefferson have insisted upon. We live within our little bubbles created by social media and cable news as the comments from my friends above readily illustrate.And, sadly, we stopped considering the common good in our decision making ever since Ronald Reagan seduced us with his 1980 siren song, “Are YOU better off than you were four years ago?” 

But ignorance is not bliss. Increasingly, at a very basic level, it poses an existential threat to the very country that so many of us claim that we love.

Best Wishes and an Early Retirement

That said, there is little point in beating one’s head against the brick wall. After several rounds, the wall remains unfazed and the head that’s been used as the battering ram is broken and bloody.

The court system that I once held in great veneration and believed to be the path toward an America gradually realizing its own ideals will go the way of the dinosaurs this day. Ironically, I was less than a year from graduating from law school when the tide turned in this direction. I knew all bets were off when Ronald Reagan was elected in 1980. And sadly, that intuition has not proven to be false.

I pray that we have reached the nadir of this regressive impulse. It’s going to be a long, hard struggle to recover from this dark night of the soul in America. I have come to accept the reality that I may well not live to see the day when the light reappears at the end of the tunnel. But I remain hopeful for a New America.

This day I wish Justice Barnett the best. But most of all I wish her an early retirement.

 

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Harry Scott Coverston

Orlando, Florida

 

frharry@cfl.rr.com

hcoverston.orlando@gmail.com

 

If the unexamined life is not worth living, surely an unexamined belief system, be it religious or political, is not worth holding. Most things worth considering do not come in sound bites.

Those who believe religion and politics aren't connected don't understand either. – Mahatma Gandhi

For what does G-d require of you but to do justice, and to love kindness, and to walk humbly with your G-d?  - Micah 6:8, Hebrew Scriptures

Do not be daunted by the enormity of the world's grief. Do justly, now. Love mercy, now. Walk humbly now. You are not obligated to complete the work, but neither are you free to abandon it. - Rabbi Rami Shapiro, Wisdom of the Jewish Sages (1993)

   © Harry Coverston, 2020

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