Nobody asked me…

“Litigants and the general public are entitled to impartial justice, which may be something a judge who is heedful of ecclesiastical pronouncements cannot dispense.”

From “Catholic Judges in Capital Cases” by Amy Coney Barrett and John H. Garvey

Amy Coney Barrett co-authored those words. She is now a nominee for a lifetime appointment on the Supreme Court of the United States.

The quote comes from an article she wrote with another lawyer while at Notre Dame. The article discusses Catholic judges and argues that although identifying as Catholic is not in and of itself a reason for recusal, a Catholic judge’s moral obligations may require them to recuse themselves in specific situations. The article is long and thorough and spends a great deal of time on the teachings of the Catholic Church as well as on federal recusal law. They conclude that our legal system leaves it up to the judge to decide if they must recuse themselves and they firmly state that judges cannot and should not align our legal system with the Church’s moral teaching whenever the two diverge. 

It’s been over two decades since she wrote that article, long before she was nominated for any judgeship, let alone the most important one. I have no reason to think that Amy Coney Barrett does not still believe this. We don’t actually have much evidence either way. She has been a judge for all of three minutes so her judicial record is tantalizingly short. We don’t actually have a lot of concrete information about her practical jurisprudence on which to extrapolate. She has also failed to provide additional information about her beliefs or thought process during her high-speed confirmation hearings. We were offered humanizing moments about her children, earnest defenses of her integrity and independence, and mostly unanswered questions.

This is not uncommon. In fact, most recent judicial nominees have played by what people call, “The Ginsburg Rule” after the late Justice Ginsburg. She claimed that an impartial judge could offer no forecasts and no hints as to how they would decide a case. Here is the full quote that created the informal rule. 

“You are well aware that I came to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously. Judges in our system are bound to decide concrete cases, not abstract issues; each case is based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives choose to present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”

U.S. Senate Judiciary Committee, Hearing, 7/20/1993

Amy Coney Barrett is playing by the same rule. As did Justices Kagan, Sotomayor, Roberts, Breyer, and Alito. She has been thoughtful, articulate, respectful, professional, and human during her confirmation process so far.

Let me be clear: confirming a Supreme Court Justice before the election is in blatant disregard for and flagrant disrespect of our fragile political norms and delicate checks and balances. It is a desperate attempt to hold onto fleeting power and immediately delegitimizes the integrity of every senator who votes for immediate confirmation. The fact that “legally” Trump has the power to nominate a justice and “legally” the Senate has the power to advise and consent, does not make it the right thing to do. Plus, hiding behind technical legality looks exceptionally foolish coming from a party led by a literal white collar criminal who doesn’t pay taxes.

We have big problems right now. But the problem isn’t Amy Coney Barrett. The problem is the system. Amy Coney Barrett is distracting you from the real problem. There are trolls on the right and the left and while most of them work out of Moscow, some of them still work in the Capitol Building. They like the system. They benefit from the system. They are using the system to divide us and to maintain power for themselves and their shady corporate bankrollers. Judge Barrett claims that she is not a pawn, but she is being used as one. These special interests are leveraging her bland objectivity as a weapon against us on the political chessboard that is the federal judiciary. Our courts are not objective safeguards; they are partisan minefields.  

We claim to want objective judges. That’s why we let them pretend to be. But we don’t actually want objective or impartial judges. We want judges that will agree with our interpretation of the law. Because deep down we know they can’t be objective. We know we can’t either. We want them to be fair, whatever that means. We want them to protect people, whatever that means. We want them to be impartial, whatever that means. But mostly we want them to think like us.

Let’s look at a timely example of what objective interpretation can mean. We’ll use the phrase, “by and with the advice and consent of the Senate,” referring to their role confirming judicial nominees, among other things.

Here is one objective way to look at it: President Obama had a constitutional directive to nominate Merrick Garland, but the Senate did not consent and therefore did not vote on the nomination.

And here is another objective way to look at it: The clause says that the Senate must advise and consent, not the Senate Majority Leader. By refusing to hold a hearing or a vote, the Senate was not able to advise nor withhold consent, a violation of their constitutional obligation.

They’re both reasonable interpretations of the law. Which one is correct? Which one is objective? Which one is the fair and just answer?

Do we need to imagine what the person meant when they were writing it, as an originalist would? Should we decide what makes the most sense for this day and age, as a living constitutionalist might do? Or should we parse grammar and diction and decide on an objective meaning of the words, as a textualist would approach it? How can we possibly separate this from what we think should happen? How can any of us truly be objective?

We all feel much more confident about pointing out subjectivity when time honored identities can be blamed. Oh, she’s black, so she’ll be biased against white people. Oh, he’s a liberal, so of course he’ll vote in favor of spending increases. Oh, she is Muslim and wears a hijab, she can’t run for public office and objectively represent all of her constituents. Oh, Amy Coney Barrett is Catholic, so she can’t make objective decisions about abortion or the death penalty. They are all lazy arguments.

Contrary to popular belief, there are forces that warp the objectivity of straight, white men too. Close your eyes and take yourself back to 2018. Brett Kavanaugh almost wept on the floor of the senate while attempting to answer basic questions about serious allegations. He was clearly traumatized by his group interview for the most important job in the legal world. This experience will stick with him. He is always going to take the side of the accused and never believe a victim’s claims. Or will he? 

Our experiences, beliefs, and relationships all affect our internal decision making algorithm, our moral compass, and our gut instincts. All of these things are constantly fighting our alleged commitment to objectivity. Let’s go back to our timely legal example above, about the objective interpretation of “advice and consent of the Senate.” If you think originalism makes the most sense, then you will apply your objectivity through that lens. If you think a living constitution makes the most sense, then you will apply your objectivity through that lens. Are those lenses not belief systems? Do those beliefs not raise questions about your objectivity in the same way that race or religion or trauma would? Why don’t we consider ideological jurisprudence to be a belief? 

I’m not sure any of us can be truly objective. Which would not be that big of a deal if we didn’t have a system that necessitated pure objectivity from nine people to defend our democracy. You can make up any objective sounding reason to justify your subjective beliefs. For example, calling yourself an originalist means you can point to the lack of protection for abortion in the constitution and hide your strong religiously founded personal beliefs behind cold reasoning. I can claim to be pro-immigration because of objective American principles and a commitment to fairness, but I am still absolutely influenced by my own family’s immigration and a search for a better life. Our judges can claim that they sever ties between the personal and professional life, but anyone who has ever made an important decision at work knows that’s virtually impossible. Of course it is: we are humans, not robots.

Judge Barrett had several humanizing moments that strayed from her defense of her own objectivity. For instance, weeping with her adopted black daughter over the murder of George Floyd. But do we want a human to be a judge? Do we want a subjective, complicated, imperfect, emotional being? Or do we want an objective, unbiased, steadfast, steward of the truth? Does the latter even exist? 

No matter how hard any of us try, including Judge Barrett, we are subjects and not objects. We can refuse to answer questions about our beliefs and decisions and past during our confirmation to the Supreme Court of the United States, but that does not make us impartial. If we are to even approach objectivity, we cannot hide our beliefs. We must name them, savor them, examine them, and understand them. Pretending not to have any beliefs does not make you objective, it makes you naïve. 

I believe our country sits on a precipice. Republicans change the rules of the game so they can win and then are outraged when their opponents would flout the norms they’ve so flagrantly disregarded. A system where the Senate Majority Leader can wreak havoc with shady political maneuvers, largely unchecked, is not a fair system. Democrats continue to attack individuals instead of the systems that create them. A system where our winners lose the popular vote by millions of ballots is not a fair system.

Amy Coney Barrett is not objective. Neither was Ruth Bader Ginsburg. Neither am I. Neither are you. Judge Barrett should not be confirmed to the Supreme Court of the United States, not because of who she is, but because of what the institution is. It is broken. We need to reimagine our judicial system as an openly subjective mechanism for fairness, equity, and progress and not as it currently exists, as a partisan plaything defending outdated statutes with faux-objectivity.