CREW generally does not take positions on judicial nominations, but the current extraordinary circumstances, with the future of our democracy potentially on the line, compel us to break with that tradition and urge the Senate to reject the nomination of Judge Amy Coney Barrett to the Supreme Court.
President Trump has said repeatedly that he expects the upcoming election to be decided by the Supreme Court and that he wants Judge Barrett in place before November 3rd so she can participate in such a decision. Those statements make clear that, for him, the effort to push this nomination through without the traditional Senate process is all about maintaining his power.
That is why we said three weeks ago that, in order to prove to the American people that she is not part of an anti-democratic power grab, Judge Barrett must pledge to recuse from any case related to the 2020 election. Such a pledge would be the only shot for the public to trust that she could be objective in an election case after President Trump has made clear his expectation that she will help decide the election in his favor; it also would be her only chance to avoid being viewed as complicit in the president’s bid to retain power at all costs. Because Supreme Court justices have total discretion on recusal decisions once they are in place, the Senate confirmation process represented the only opportunity for accountability for Barrett on this issue.
The Senate Judiciary Committee held its hearing on Judge Barrett’s nomination last week, and she was asked directly to commit to recuse from cases involving the election. She refused. That in many ways ends the inquiry for us. A nominee who will not clearly and strongly refuse to participate in an assault on our democratic system simply cannot be confirmed to one of the most powerful positions in American life.
“Her refusal to even say what the law is, when doing so might contradict President Trump, again creates a real danger that she will be a party to the president’s abuses of power, rather than an impartial arbiter of the law.”
A few other factors reinforce this conclusion. It is by now normal for Supreme Court nominees to avoid taking stances on controversial past decisions and current issues during the vetting and confirmation process. But even so, recent nominees to the high court have been willing to affirm at least some baseline legal principles. Yet Judge Barrett was not willing to express an opinion on whether the president could postpone an election, even though the plain language of the Constitution makes clear that Congress sets the date of elections. Judge Barrett also refused to say whether intimidating voters at the polls is illegal, even though federal law states in clear language that it is. Her refusal to even say what the law is, when doing so might contradict President Trump, again creates a real danger that she will be a party to the president’s abuses of power, rather than an impartial arbiter of the law.
Finally, the Senate Judiciary Committee is set to vote on her nomination this week despite a woefully inadequate period of time to complete the important Senate review process that is a key piece of our system of checks and balances. Senators and staff have not had nearly enough time to review the thousands of pages of materials submitted by Judge Barrett. To make matters worse, it is now clear that some key materials were missing from her submissions. Because Senate leadership has insisted, for political reasons, on a highly accelerated pace, we cannot even know what may still be missing. Last week’s hearings raised additional questions about Judge Barrett’s commitment to democracy, but the Senate process allows no time to meaningfully address those concerns.
Sadly, we must conclude that Judge Barrett’s nomination to the Supreme Court, based on what we know now, can only be viewed as a threat to our democratic system. Senate leadership, and Judge Barrett herself, have ensured that there will not be any more chances to address those concerns about whether she will uphold, or openly undermine, our democratic principles. For the continued existence of our democratic system of checks and balances, we must urge every Senator to oppose Judge Barrett’s nomination.