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Barrett’s Evasions Show Why Expanding the Court Is Necessary

The Republican deal with the devil to tolerate Trumpian corruption in exchange for a supermajority deserves both scorn and redress.

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Supreme Court nominee Amy Coney Barrett meets with Mitch McConnell in preparation for her confirmation hearing., Susan Walsh / Getty Images // The Nation

Donald Trump has been admirably candid about the fact that he’s rushing the nomination of Amy Coney Barrett to be a Supreme Court justice because he might need her help to decide the election. “I think this [the election] will end up in the Supreme Court,” Trump told reporters on September 23. “And I think it’s very important that we have nine justices.”

During Tuesday’s Senate hearings, Barrett was asked if she would recuse herself if the scenario Trump outlined came to pass and she had to pass judgment on the election. Barrett refused to commit to recusal, protesting that her personal integrity would guard against any wrongdoing. “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. Alarmingly, Barrett refused to answer questions about whether Trump has the unilateral right to postpone the election and whether he should commit to a peaceful transfer of power.

Barrett is framing the issue of integrity in narrowly personal terms, as if her own honesty were all that counted. But integrity is a matter of legitimate systems as well as honorable people. It doesn’t matter how much personal decency Barrett has. Her pending elevation to the Supreme Court is the culmination of a corrupt process, one that calls into question the legitimacy of the institution itself.

As Tufts University political scientist Daniel Drezner notes, “So on the one hand everything I’ve read about Barrett suggests she is a person of integrity but on the other hand she willingly accepted the nomination of an impeached president in a rush job of a confirmation process weeks before Election Day.”

By affirming her own personal integrity, Barrett is asserting that she should be evaluated as an individual jurist. But in her public capacity as a judge, she’s not an individual but a soldier in a political army, one that has violated many democratic norms in order to secure a 6-3 supermajority for the Republican nominees on the Supreme Court. It’s the operation of that machine that makes her nomination disquieting.

The path that created that 6-3 majority is well-known: the death of Antonin Scalia, followed by the Republicans under Senate majority leader Mitch McConnell blocking Barack Obama’s nominee Merrick Garland from even receiving hearings, Donald Trump winning the White House with the promise to nominate conservative judges, assurances by Republicans that under the same circumstances as Scalia’s death they wouldn’t nominate a Republican judge, the death of Ruth Bader Ginsburg, and the Republican violation of their own stated standards.

But the corruption goes deeper. McConnell has two great and odious achievements: He has protected Donald Trump from investigation for corruption, and he’s packed the federal judiciary with Republican nominees. McConnell’s two legacies are intertwined. In the Trump era, the institutional GOP has made a deal with the devil: Trump is shielded from the consequences of his crimes, in exchange for which he’s outsourced the selection of judges to the reliably right-wing Federalist Society, with McConnell’s mastery of Senate rules ensuring almost all those nominees will be seated.

McConnell’s work as Trump’s enabler has been constant—and was most visible during the impeachment trial, when the majority leader ran roughshod over rules to ensure there would be no subpoena of witnesses and documents. As Senator Jeanne Shaheen noted in January, “This is not a fair trial … this is a cover-up, pure and simple.”

McConnell has paid a high price in reputation for covering up crimes. It will taint his legacy. But the real-world payoff for the cover-up has also been immense. Since McConnell had already diligently worked to block Obama nominees, this meant that under Trump the Republicans could stack the courts with hundreds of Republicans.

As Jonathan Capehart noted in The Washington Post, “it should be clear that the real ‘court-packing’ has been happening under Trump. Because Republicans choked off confirmations under Obama, Trump ‘inherited’ 103 vacancies, notes a 2020 Brookings study. As of Oct. 6, according to the American Constitution Society, 218 judges have been confirmed, more than Trump’s Republican predecessors and second to Democratic President Jimmy Carter. The average age of Trump’s appointees to courts of appeals, considered the farm team for the Supreme Court, is 48.2 years.”

The Supreme Court supermajority is the top of this pyramid of court packing. To use a famous phrase of Justice Felix Frankfurter, Republican court packing is the fruit of the poison tree. It’s a direct result of McConnell’s norm-breaking, including his tolerance for Trump’s corruption.

[Jeet Heer is a national affairs correspondent at The Nation and the author of In Love with Art: Francoise Mouly’s Adventures in Comics with Art Spiegelman (2013) and Sweet Lechery: Reviews, Essays and Profiles (2014).]

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