JUSTICE IN A BOX

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I came away from the Senate Judiciary Committee hearings on Supreme Court nominee Amy Coney Barrett feeling a range of emotions: primarily anger, incredulity, and to my surprise, a faint sense of pity.

You don’t have to agree with Barrett to see that she’s a woman of enormous drive. As she mentioned in her opening statement, she will be the only person on the Supreme Court who didn’t come out of Harvard or Yale. Without that built-in set of connections, she had to hustle to get that all-important clerkship with Justice Antonin Scalia. She’s steadily risen up the ranks in both legal and academic circles, both still male-dominated professions. And yes, she did that while giving birth to five children and raising seven. All of that is impressive, especially for someone who is not even fifty years old.

But she wasn’t chosen so much for her drive or her intelligence or her energy as her predictability. The people that put her on the short-list of nominees did so because they have a pretty good idea of how she is likely to lean on the issues before the Court. Donald Trump surely hasn’t read even one of her papers or decisions; she simply fits his reality-show worldview by “looking the part” of Plucky Female Justice. The Republican senators who are going to put her in her lifetime seat said they would vote for whomever was nominated before she was even chosen.

The problem is, they needed her to look plausibly non-ideological. One after another, Republican senators praised her legal brilliance, while Barrett sat there for three solid days hiding every thought or feeling or idea she’s ever had, to the point where she was acting like her legal writings — the very things that led to her appointment — had about the same value as a shopping list. The Amy Coney Barrett who appeared before the American people was no legal genius. She was a robot: feed her the correct arguments and briefs and statutes, and she’ll spit out a perfectly balanced opinion, free of all ideological bias.

I found myself staring at her during certain points of the questioning, wondering who or what is behind that mask. Part of me thinks she’s got to find all of this humiliating. To have spent your entire adult life jumping through every hoop and trying to cement a reputation as a legal scholar, only to be chosen for the high court by a man whose legal thinking stops at “I have an Article II”? To have a White House ceremony introducing you to the world, only to have it turn into a superspreader event that could have hobbled much of the Executive branch? To sit there, smiling, while Ted Cruz asks you probing legal questions like, “do you play the piano?”

Here’s what I most wondered: does she know this is ethically wrong? Does she care? Clearly, the President has a constitutional right to nominate her, and the Senate has a constitutional right to confirm her. That does not make it right. Polls have shown that a majority of the American public — the same people whose lives will be shaped by her decisions for the next quarter-century or more — want to hold off on filling the vacancy until after the election. Instead, she is likely to be sworn in within hours of Election Day on a wholly partisan vote.

Or maybe I’m giving her too much credit. There’s a good chance that she’s not going to lose much sleep over the ethics of it all. After all, originalist legal theory, which Barrett has espoused and expanded on throughout her career, is all about drawing tight boxes around complex issues on the argument that, “hey, that’s what the original text of the Constitution means.” Maybe, in the end, Barrett is just most comfortable inside the little box. 

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