A Time to Fight
Trump should nominate Amy Barrett to the Supreme Court. Save the worries over norms and procedures for another time.
Donald Trump, his supporters say, is a man who fights. Yet that supposed fighting can sometimes feel more like Punch and Judy-style slapstick theater. In the Trump era, only the thinnest membrane separates politics from televisual spectacle, which can make it difficult to gauge how effective the president really is. Is he beating back the left? Or is he just calling them names on Twitter while they pound the pavement to replace him?
Whatever the answers to those questions, one thing is now abundantly clear: the vacancy of a Supreme Court seat has given Trump an opportunity to fight, really fight.
Ruth Bader Ginsburg was a titan of the law, a woman of deep culture and learning whose mind you had to respect even if you were at odds with it. My condolences go out to her family. But her formidable accomplishments make no more claim on her empty Supreme Court seat than Ted Kennedy’s work on health care did on his Senate desk. The people of Massachusetts deserved full congressional representation and the people of America deserve a full Supreme Court. That’s all the more true as we approach what could be a tight and contested election, when judicial deliberation might unfortunately prove necessary. The lawsuits fly…multiple lower courts declare multiple effective winners…for the sake of the republic, the Supreme Court can’t have an even number of justices.
So far, Trump has seemed to relish this fight. He’s pledged to fill Ginsburg’s seat “without delay” and is expected to announce a nominee by week’s end. He’ll likely name Amy Coney Barrett, a devout Catholic who’s expressed some skepticism over Roe v. Wade and who generally takes a Scalia-esque textualist approach to the law. For all the fluff about how Trump was going to nominate Tom Cotton or Jeanine Pirro or the judge from My Cousin Vinny, he appears to be doing exactly as he should. Barrett is careful, unflappable, and deeply professional. She’s a native of New Orleans and a lover of Truman Capote. A former professor and frequent tailgater at Notre Dame Law School, her prior nomination to an appellate court was unanimously supported by her faculty colleagues.
Yet despite all that, she’s probably best known for sending Dianne Feinstein into a fit of ecclesiophobia. After Trump nominated Barrett to serve on the Seventh Circuit Court of Appeals, Senator Feinstein grilled her about her Catholic beliefs and whether “the dogma lives loudly within you.” At issue was a law article Barrett had co-authored in 1998 with John Garvey, now the president of my alma mater, the Catholic University of America. The essay is cozily familiar to us Cardinals, an Aristotelian consideration of how Catholic judges should handle capital punishment cases. Barrett and Garvey distinguish between formal and material cooperation with evil. The first is analogous to actually signing an execution order, while the second is more indirect and less clear, helping a wrongdoer without necessarily sharing his intent. They note that Catholic judges must recuse themselves in cases of formal cooperation and apply a “moral balancing test” in cases of material cooperation.
The essay is cautious and analytical, a good-faith attempt to work through a conundrum faced by many judges, and not just Catholics. What do you do when the law conflicts with your deeply held beliefs? Even Vox.com took it seriously. Yet the article is also notable for what it doesn’t do. According to Barrett and Garvey, “Judges cannot — nor should they try to — align our legal system with the Church’s moral teaching whenever the two diverge.” Clearly Barrett is no Catholic integralist; if she were, she’d be far more insufferable on Twitter.
Yet that didn’t stop progressives from trying to portray her as some kind of chanting theocrat. And it’s here that political considerations enter the fight. If Barrett is nominated, Democrats are going to spend the next month and a half saying stupid things about Catholics, a demographic they badly need to win on Election Day. That doesn’t guarantee that a nomination battle won’t also hurt Republicans—polls find that Americans prefer that the election winner appoint the next justice—but it does provide a plausible method for piecing back together the Trump coalition of yore. Trump’s method has always been to crash down hard on one side of the culture war. I’m not sure that can get you to 270 twice, but if you’re going to try, then a Barrett pick is as good a weapon as any. Some Rust Belt Catholics might very well be lured back; Trump’s conservative base will certainly be turbocharged.
Progressives do make one convincing argument here, not against Barrett per se but against any Trump nomination at all. They say that for Republicans to ram through a justice would be hypocritical, since Mitch McConnell blocked Barack Obama’s elevation of Merrick Garland back in 2016 on the grounds that any confirmation should wait until after the election. McConnell, they say, must now do the same thing. If he doesn’t, he’ll erode our norms of governance, subordinating them to base partisanship.
The left has lately fallen in love with that word, “norms,” which they constantly accuse Trump of violating. And they have a point. Politics is circumscribed not just by promulgated laws but by unwritten codes and traditions—norms—that govern public servants’ behavior. Burke’s words, as always, haunt the air: “Manners are of more importance than laws. Manners are what vex or soothe, corrupt or purify, exalt or debase, barbarize or refine us, by a constant, steady, uniform, insensible operation, like that of the air we breathe in.”
Yet who’s really trampling on our norms here? Which party is now threatening to use court packing as a political weapon? Which party scarcely bothered to veil their application of a religious test against Barrett? Which party threatened riots, arson, even civil war mere hours after Ginsburg had passed? Which party turned Brett Kavanaugh’s confirmation hearings into a sub-Oscar Wilde kangaroo court? And while we’re on the subject of norms, what in the world is “normal” about Roe v. Wade? Where is it inscribed that abortion is a constitutional right while things actually mentioned in the Constitution like hate speech and bearing arms are not? Who thinks a magical legal penumbra conjured up by the Court ought to be able to bulldoze countless state abortion laws? Who really believes that nine ex-lawyers should decide the contours of such a controversial and extraconstitutional issue, rather than the states and the people themselves?
None of this is remotely “normal.” So while I too worry about a culture war so violent it cracks the institutions around it, there will be other times to register those concerns. On abortion, the pro-choicers fired first. Trump ought to join their fight, appoint Barrett, and fasten the bulkhead doors. And if Democrats threaten to pack the court, fine. Write that into every campaign commercial. Mention it on every doorstep.
This is the most important fight of Trump’s presidency. Fortunately for once Republicans seem up to the challenge.