President Donald Trump has made clear that he values personal loyalty to himself above all other traits in those around him, both when it comes to his political aides and who he calls “his” judges. He has personally attacked judges who rule against his administration’s interests while promising that those he nominates will carry out his administration’s policy goals. Those goals chiefly include eliminating the Affordable Care Act (ACA)—as he is currently urging the U.S. Supreme Court to do in a lawsuit—and dismantling Roe v. Wade.
During her confirmation hearings, Judge Amy Coney Barrett attempted to stress her independence. Unfortunately, her participation in an unprecedented, partisan, and rushed process to place her on the bench, coupled with her extreme record as an academic and a judge, creates serious concerns. If Barrett is confirmed, the public may view her as an ideological operative rather than an unbiased jurist. When paired with the damage Trump has sought to inflict on the independence of the judiciary since taking office, the existence of a Justice Barrett would severely damage the legitimacy of the Supreme Court.
The political nature of Amy Coney Barrett’s rushed nomination and hearing process
At the White House celebration of Barrett’s nomination to the Supreme Court—held even before late Justice Ruth Bader Ginsburg was laid to rest—Barrett mirrored the behavior of the president and his top aides by flouting Centers for Disease Control and Prevention guidelines to prevent the spread of COVID-19, failing to both wear a mask and social distance. This show of reckless solidarity, coupled with Barrett’s willingness to be a part of a process that broke with historic precedent and violated Senate Majority Leader Mitch McConnell’s own claims from just four years ago, casts a political pall over her nomination that would have been alarming even if her record was not so extreme.
Barrett had long been on Trump’s shortlist for a Supreme Court nomination. She was a favorite of conservative activists for her staunch opposition to the ACA, Roe v. Wade, and even contraception. Far from distinguishing herself from these conservative policy priorities during her hearings, Barrett made clear that she was willing to parrot far-right talking points. In lockstep with some Senate Republicans’ posturing that the Trump-backed lawsuit to repeal the ACA was unlikely to succeed, Barrett downplayed her opposition to the law and resorted to obfuscation in order to distract from the fact that the pending suit could end the law in its entirety. And after it came to light that Barrett attempted to hide a petition she had signed calling Roe “barbaric” and where she pledged to defend life beginning at fertilization, she doubled down on her extreme views and repeatedly refused to even say if Griswold v. Connecticut—the landmark 1965 Supreme Court case recognizing married couples’ right to access birth control—was rightly decided.
Furthermore, Barrett declined to acknowledge basic facts. For example, she refused to acknowledge that voter intimidation at polling places is prohibited under federal statute. And while she agreed that smoking can cause cancer, she claimed that recognizing climate change would be too controversial.
Barrett’s confirmation would dramatically further Trump’s politicization of the judiciary
Barrett is far from the only individual Trump has nominated for a lifetime appointment on the bench who is aligned with a far-right ideology that raises serious concerns of bias in the courts. A record number of Trump’s judicial nominees have been deemed “unqualified” by the American Bar Association. Moreover, Trump’s nominees—overwhelmingly white and male—have significantly rolled back past efforts to diversify the judiciary.
Furthermore, Trump has promised that his judges would be vetted by far-right organizations and even questioned the ability of a judge to be impartial in a case concerning Trump’s own financial interests because of his “Mexican” heritage. President Trump’s common references to “his judges” as well as “Obama judges” earned what many saw as a rebuke from Chief Justice John Roberts. Trump has even launched personal attacks against a judge who oversaw the trial of political ally Roger Stone.
Underscoring this trend, after slightly less than four years in office, while a relatively small percentage of nominees overall, President Trump has already placed twice as many White House political aides on the bench as Obama did throughout his eight years as president.* Defined very narrowly for illustrative purposes as counsels or assistants to sitting presidents, these political appointees often have a strong dedication to the ideology of the president they serve.
And indeed, those who have served as aides have proved to be some the most controversial of his nominees. Most notably perhaps, Justice Brett Kavanaugh—formerly a White House aide to President George W. Bush—lashed out at senators during his confirmation; he claimed that the credible sexual assault allegations he was facing were little more than political revenge for his career before joining the bench. And during his confirmation, Steven Menashi—a judge on the U.S. Court of Appeals for the 2nd Circuit who previously served as a White House aide to Trump himself—refused to answer questions about his work within the Trump administration to such a degree that even some of the president’s usual allies on the Hill criticized Menashi for his lack of transparency.
These appointees have also put forward extreme legal arguments once on the bench. Judge Neomi Rao—an associate counsel and special assistant to President Bush who was serving within the Trump administration as a high-level official in the Office of Management and Budget at the time of her appointment—has authored dissents containing wild views of executive power that would protect Trump against virtually any congressional oversight. In addition, Rao has been a leading voice in siding with the U.S. Department of Justice’s widely criticized decision to attempt to drop charges against the president’s former national security adviser Michael Flynn, contrary to the views of career prosecutors.
Conclusion
While Supreme Court justices are not bound by any code of conduct, ethics standards for judges require a recusal when, even if there is no actual bias, a reasonable appearance of bias exists. Trump’s politicization of the judiciary—now dramatically elevated by the current, desperately rushed process to confirm such an extreme nominee—may very well have the effect of sending the public the message that they should view future opinions and dissents through the prism of the judge’s demonstrated politics as opposed to their judicial reasoning. This would further erode trust in the court’s decision-making and, as a result, undermine the stability of American law, causing significant harm to a bedrock of American democracy.
Maggie Jo Buchanan is the director of Legal Progress at the Center for American Progress
*Author’s note: To determine the number of political appointees in the Trump and Obama administrations, the author relied on the Federal Judicial Center’s searchable database of the resumes of every past and present federal judge. The author ran the search term “White House” as well as the names of all presidents dating back to Ronald Reagan for the resumes of every judicial appointment made by Presidents Donald Trump, Barack Obama, George W. Bush, and Bill Clinton. This analysis excluded any position that involved search terms associated with those who were unlikely to have served as a close aide—for example, “White House Fellow.”