Born in 1944, I grew up in a world largely made — and made pretty well — by the US. The post-World War II settlement established institutions, global rules and an alliance of free societies that enabled most of us to thrive in peace.
There were mistakes, of course, with the Vietnam War being a prime example. Yet despite some strategic errors, the world’s open societies fared well and generally adhered to their stated principles.
Through what Harvard University’s Joseph Nye Jr calls “soft power,” the US consistently won the argument in favor of the rule of law and liberal democracy. When given a free choice, most people chose these values over the alternatives.
I was thinking about this worthy tradition as I watched this month’s US Senate hearings to confirm Amy Coney Barrett to the US Supreme Court. Listening to the proceedings, I found myself thinking that, whatever our failings in Britain (there are plenty, and the number has ballooned under British Prime Minister Boris Johnson’s leadership) at least we do not need to know what political opinions our judges hold.
Does the head of the UK Supreme Court favor gay marriage or protections for abortion? No one would dream of demanding a response to such questions before deciding whether a judicial appointee is qualified to serve.
I have no reason to doubt Barrett’s abilities. Like me, she is a Catholic, which should not be a barrier. Yet I do have considerable misgivings about her judicial philosophy and the particular manner of her appointment — and on the latter issue, she should agree.
On the jurisprudential question, Barrett is a disciple of former US Supreme Court justice Antonin Scalia, meaning she is an “originalist,” who tries to approach the law through the eyes of those who drafted the US constitution more than 230 years ago.
The real-world implications of “originalism” were particularly stark in a case before the US Supreme Court last year. A condemned murderer, Russell Bucklew, had challenged the method by which the state of Missouri would execute him.
He suffered from a rare disease that had left him ravaged by blood-filled tumors and physicians had warned that one of the drugs in the lethal-injection mixture could cause these to burst, causing him to drown in his own blood.
This did not happen when Bucklew was executed, but the danger was there when the US Supreme Court considered his appeal. Bucklew’s lawyers argued for death by other means, on the grounds that the proposed method could violate their client’s eighth amendment prohibition of “cruel and unusual punishment.”
When the US Supreme Court’s conservative majority rejected his appeal, it argued that those who drafted the amendment in 1791 had in mind punishments such as disembowelment, dismemberment or burning at the stake.
Never mind that in 1958, then-US chief justice Earl Warren argued that the eighth amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
Since Barrett will join a bench that is already majority Catholic, she and her colleagues might want to reflect not just on Warren’s words, but also on those of St John Henry Newman, who was canonized last year: “To live is to change, and to be perfect is to have changed often.”
In any case, it is not so much Barrett’s legal opinions that should concern those who believe in the rule of law and its central place in an open society. Rather, the problem is that Barrett is being installed in the court in a manner that will undermine its integrity.
The court is at severe risk of being fatally corroded by “dark money,” a point that was outlined in rich detail during the confirmation hearings by US Senator Sheldon Whitehouse, a Democrat from Rhode Island.
Like all of US President Donald Trump’s judicial nominees, Barrett was selected by the Federalist Society, a conservative organization that exists solely to fill federal appointments with like-minded “originalists.”
The group is heavily bankrolled by private and corporate money, and therefore is almost certainly advocating for specific corporate and private interests (its members generally oppose environmental regulations, to take just one example).
“Dark money” is allowed to play such a prominent role in the US political process, partly because in the infamous 2010 decision in Citizens United vs Federal Election Commission, the US Supreme Court’s conservative majority decided that rules limiting independent political donations are a breach of the first amendment right to free speech. Deep-pocketed lobbyists and special interest groups have enjoyed a bonanza ever since.
Moreover, since Trump took office, he and his fellow Republicans in the US Senate have stacked the federal judiciary with more than 200 conservative judges. (It is worth noting that among those chosen for appellate courts, not one is black.)
What sort of liberal democracy with a commitment to the rule of law allows such open corruption of its judicial appointments and political system more broadly?
From partisan bad faith to the flood of secret money that secures undue influence, the US has adopted the standard practices of a “banana republic.”
This is not to question Barrett’s integrity, but, surely, she knows that Trump would not have appointed her unless he was confident that she would help to overturn former US president Barack Obama’s signature healthcare legislation. After all, she is already on record criticizing US Chief Justice John Roberts for his failure to dismantle the law on a previous occasion.
US Senate Majority Leader Mitch McConnell, a Republican who has taken a wrecking ball to the nation’s reputation for democratic standards and consensual politics, had put all business aside in order to ram through Barrett’s nomination before the US election on Tuesday. Perhaps suspecting that Trump would lose, he does not want the appointment to appear any more illegitimate than it already does.
McConnell, of course, is the one who refused even to hold hearings for Obama’s nominee to fill the seat vacated when Scalia died in early 2016, 269 days before a change of administration. Barrett’s presence on the bench will inevitably be tainted by the hypocrisy and political trickery that put her there.
For a democracy to survive, prosper and set a worthy example for others to follow, it must be led by men and women of integrity and honesty. McConnell’s unctuous casuistry represents precisely the opposite. The commitment to the rule of law in the US is being tragically tarnished by what is happening to the Supreme Court on the eve of the election.
Chris Patten, the last British governor of Hong Kong and a former EU commissioner for external affairs, is chancellor of the University of Oxford.
Copyright: Project Syndicate
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