Comment: Why Justice Barrett is blind to her own partisanship

Many people want to see themselves as impartial observers and decision-makers. Almost none are.

By Philip Bump / The Washington Post

If Senate Minority Leader Mitch McConnell, R-Ky., were consistent, it’s likely that Amy Coney Barrett wouldn’t be a Supreme Court justice at all.

If, for example, McConnell were consistent in his opposition to confirming justices shortly before presidential elections, the argument he made when blocking Barack Obama’s 2016 nomination of Merrick Garland, he would not have agreed to the even-later confirmation of Barrett only weeks before the 2020 election. If he were consistent in being comfortable with such nominations, then Garland would probably have joined the bench, meaning Donald Trump would have had only two seats to fill; giving them, perhaps, to Neil Gorsuch and Brett Kavanaugh, his first two picks.

But McConnell was not consistent because it is not his job or desire to be consistent. His job is to build power for the Republican Party and, more broadly, the political right. So that means nixing Garland and fast-tracking Comey, ginning up a paper-thin rationalization for the difference and basking in a Supreme Court that has a net of three more conservative justices relative to the beginning of 2016 instead of just one.

To hear Barrett tell it, though, McConnell’s tactics resulted simply in a Court with nine objective, apolitical actors, defying accusations that there was a political subtext to their work. Speaking on Sunday at the, uh, McConnell Center at the University of Louisville, Barrett defended the independence of herself and her colleagues.

“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” she said as reported by the Louisville Courier Journal. She articulated the distinctions seen as being ones of “judicial philosophies” and pointed to occasions on which she and others who share her particular philosophy nonetheless agreed on a decision.

“Sometimes I don’t like the results of my decisions,” Barrett said in defense of her and the Court’s work. “But it’s not my job to decide cases based on the outcome I want.”

All of that is certainly fair; but also a pretty obvious example of hiding the ball.

Let’s say my wife and I are debating what car we want to buy. She’s advocating for a Ford; I want a Chevrolet. Unable to resolve the dispute, we agree to defer to a third party, this guy I know who really knows cars … since he spent 30 years working at a Chevy dealer. He offers pros and cons for the decision but, ultimately, sides with me. A surprise and a relief, to be sure.

The point is that there is an often vanishingly small distinction between a decision-maker who is driven by distinctly partisan motivations and a decision-maker who is chosen for the job by someone with distinctly partisan motivations. Trump and McConnell wanted hard-right justices for the Court, and they worked together to get Gorsuch, Kavanaugh and Barrett on the bench. Now those justices may argue convincingly that they are not partisan actors, just as my Chevy-dealer friend might argue that his views on car-buying is untainted by bias. They may even buck expectations regularly. But on balance, people who have spent a great deal of time investing in and demonstrating a particular worldview are going to come back to that worldview as surely as the dice at a craps table are going to come back to seven.

This is also a generous assessment. It is also possible to conceptualize a jurist who holds starkly partisan views that are then packaged or rationalized within the bounds of a judicial philosophy. The cases the Court hears are by definition the most difficult and complicated that arise. However distilled one’s objective philosophical approach to decision-making, it will need to be implemented in a way that’s subjective to the case. Many people want to see themselves as impartial observers and decision-makers. Almost none are.

Also interesting is that, certainly without intending to, Barrett is bolstering the utility of the sort of efforts at inclusion that are popular on the political left. Outside groups that are smart about their endorsement processes for elected officials invoke a particular litmus test: Will the candidate reflect their views when they aren’t in the room? Women, Black and Hispanic Americans often call for more diversity in positions of leadership recognizing, as Barrett implicitly does, that having people there who understand and share their experiences will affect the decisions being made by leadership groups. McConnell and Trump supported Barrett because they were confident she would reflect theirs.

McConnell introduced Barrett on Sunday, where he “praised the court’s most junior justice for not trying to ‘legislate from the bench,’” according to the Courier Journal. Introducing a speaker is not a moment to offer criticism of them, certainly, but that McConnell was introducing her at all, much less approvingly, does not help Barrett’s case that her presence on the Court is disentangled from politics.

The minority leader also apparently praised her for being from “middle America.” But of course this background and worldview that McConnell celebrates plays no role in Barrett’s decision-making, objective assessments that are exclusively downstream from her political philosophy.

Philip Bump is a correspondent for The Washington Post based in New York. Before joining The Post in 2014, he led politics coverage for the Atlantic Wire.

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