Dear Judge Amy Coney Barrett, You Can Stop This Disaster Before More Lives Are Lost, and Legitimacy Squandered
Demetrius Freeman / Pool via Reuters
Dear Judge Barrett,
Everyone who knows you says that you are a person of principle, conscience, and strong moral character. After reading much of your writing, I am inclined to agree with you.
I therefore urge you to reflect on the profound moral questions your judicial nomination process raises. If you do, I believe you will make the painful but necessary decision to withdraw.
There are two compelling reasons for this conclusion: First, the likelihood that your verification process will cost lives; and second, the extreme dishonesty and slapdash nature of the process, which dwarfs the legitimacy of the Supreme Court and your own character.
Let's start with the sanctity of human life. With three senators already tested positive for COVID-19, it is almost certain that many more congressional aides, family members and workers will develop the disease.
As you know, the September 26th ceremony announcing your confirmation will now be classified as a Superspreader event. Twelve people at the ceremony have so far tested positive, including the President of Notre Dame, Father Dr. John Jenkins, who apologized for attending it without a mask (which is against his own guidelines) and is now about to step down.
How many hundreds of people have these eight exposed to the coronavirus? How many of them get sick? How many will die?
Most importantly, how many people will be exposed to the virus if this process continues? Remote testimony and even remote voting will lessen the impact, but some Senate staff will have to continue to work in person, and if recent experience is a guide, so will many Senators who put themselves, their families, their aides and others at risk.
Of course, this is not your direct decision. But aren't you morally involved in the reckless behavior of these politicians? You have the power to stop this travesty before more lives are lost. In fact, I would argue that you are the only person who is truly capable of it.
The political incentives for Senators Mitch McConnell and Lindsey Graham, both of whom face difficult re-election campaigns, are too strong to be overcome. You will expose more people to a potentially deadly virus. Two senators who tested positive have already stated that they will end their quarantine early to vote for you (personally). This is an immoral act that endangers innocent lives. How many more compromises do you think they will make? How many people get sick?
The only person with the power to save their life is you.
The second moral flaw in your verification process is how it is burdening the court and you with illegitimacy.
I'm sure you've seen the New York Times editorial, composed entirely of quotes from Senate Republicans from 2016, arguing why a Supreme Court candidate shouldn't be considered in an election year. I'm sure you appreciate the hypocrisy of McConnell, Graham, and others.
On one level, this hypocrisy is both ridiculous and expected. Politicians wield the power they have, period. They could stop Judge Garland's nomination, so they did. They can advance yours, and so are they.
But “power does right” is not a moral principle. In 2016, I argued that senators violated their sworn oath in defense of the constitution by refusing to perform their constitutional duties on a "principle" they invented out of nowhere. However, once you have invoked this principle, you should at least follow it consistently.
Additionally, not only is this process moving at the speed and seriousness of a shotgun wedding, but the Senate may have to break its own rules to force you to confirm.
The Judiciary Committee is already planning a meeting on October 12th while the Senate isn't even in session - a violation of logic itself, if not the Senate's rules. The committee has already planned to promote your nomination to the Senate on October 22nd to make the process transparent.
Given the possibility that the committee lacks a quorum, there is even talk of skipping the committee process instead and proceeding for the first time since 1925 without hearing the committee.
And in the event that there isn't a physical quorum for that Senate vote, as the constitution requires, Chairman McConnell put the idea into action of changing Senate rules to allow proxy, and even Senate rules for changing the Violating rules (another) - referred to as "nuclear option").
Obviously you know all of this. But you may think that there are overriding principles involved - you have the power, for example, to make states ban abortion again.
But is it worth saving unborn life to endanger the lives of countless people in orbit of the US Senate? And should the Democrats recapture the Senate in the election in order to undermine the Supreme Court to the point where “court wrapping” becomes likely?
Or maybe your own pride is at stake. After working for Judge Garland, I know this is a once in a lifetime opportunity for you to work at the height of the legal profession and change the course of history. Wouldn't it also be a profound historical moment for a person of conscience to give up such an opportunity because the moral cost of grasping it is too high to bear?
After all, politics is of course always chaotic. And none of us are above hypocrisy. No doubt I am motivated to write these words in part because I disagree with you on critical issues of principle, not least regarding the legality of my own marriage and family.
But I ask you that. Are there any number of circumstances where a process would be so unprincipled that you could in good conscience not be part of it? And have we not reached that point with these multiple violations of security protocols, norms, rules and basic principles of honesty?
Or do the ends justify the means? Even if that means polluting the Supreme Court - and you - with illegitimacy?
Innocent lives are at stake. It is clear that the politicians will not save them. I urge you to do what you cannot.
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