Ethics above politics | Wittels

As a former law professor and now sitting federal judge, Supreme Court nominee Amy Coney Barrett well knows that all federal judges must abide by the Code of Judicial Ethics and “should not … convey or permit others to convey the impression that they are in a special position to influence the judge.” Unfortunately, with her hasty Senate confirmation vote set for Oct. 26, barely a week before the election, this is exactly the impression Judge Barrett has allowed her Republican backers to convey.

Consider the following remarks which spotlight the Judge’s ethical quagmire. "I will appoint judges that will be pro-life," President Trump told Fox News, “and the biggest way you can protect it is through the Supreme Court and putting people on the court.”

A faithful pro-lifer, Judge Barrett foreshadowed in 2016 how she would vote on an abortion case before the high court: “I think the question of whether people can get very late-term abortions, you know, how many restrictions can be put on clinics, I think that would change.”

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On another hot button issue teed up before the Supreme Court directly after the election on Nov. 10, the Trump Administration will argue again that the Affordable Care Act should be overturned. On this issue too Judge Barrett has signaled she is a willing helper: “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” she wrote in a 2017 law review article.

Canon 2 of the Judicial Ethics says a judge should “avoid the appearance of impropriety.” But with her public statements and actions Judge Barrett shows no aversion to putting politics before judicial impartiality. Her about-face participation in the nomination process contradicts the very position she and her Senate sponsors took in 2016 when the seat of her former mentor Justice Scalia was up for grabs.

Back then Judge Barrett defended the Republican-led Senate’s refusal to give Judge Merrick Garland so much as a hearing, sounding the alarm about replacing “the staunchest conservative justice on the court” with “someone who could dramatically flip the balance of power."

But now, given the chance to solidify the conservative majority even further, Judge Barrett aligned with her Republican Senate champions, Judiciary Chairman Lindsey Graham, Majority Leader Mitch McConnell and former Judiciary Chairman Charles Grassley, parallel masters of the art of hypocrisy without apology.

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In stonewalling Judge Garland, Graham said at the time, "If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say, 'Lindsey Graham said let's let the next president, whoever it might be, make that nomination.’ And you can use my words against me and you’d be absolutely right. We are setting a precedent today.”

Certainly, it’s no surprise that a politician would fail to follow his own precedent, but it’s much harder to swallow coming from a judge. What’s also not right is Judge Barrett dodging Sen. Klobuchar’s question at the Oct. 13 confirmation hearing on whether it’s faithful to our democratic principles to fill a Supreme Court vacancy this close to an election with more than ten million votes already cast (today exceeding 40 million votes): “That is a question for the political branches,” answered Judge Barrett.

With all due respect judge, I dissent. The senator’s question cuts to the heart of the matter: whether this headlong rush to confirmation is legitimate and ethical. Indeed, what we’re looking at here is the lifetime appointment of a 48-year-old jurist who will shape the direction of the Court and our country for a long time to come. While those in power may not care about their words being used against them, there is one person in this process who should truly care about the ethics of the nomination, and that’s the nominee.

Judge Barrett must weigh the damage her confirmation will cause to the American public’s faith in the independence of the Court against her fervent desire to sit on it. In this respect, the Judicial Ethics Code again speaks loudly: “A judge … should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

An apt quote from former boss Judge Scalia for whom she clerked should be her guide: "More important than your obligation to follow your conscience, or at least prior to it, is your obligation to form your conscience correctly.”

By voluntarily withdrawing her nomination, Judge Barrett can regain the moral high ground and send a message to the American people that will have more import than any decision she could ever hope to write: fairness, equity, and doing the right thing trump politics every time. And who knows, the new President might even nominate her again.

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This article originally appeared on Asbury Park Press: Ethics above politics | Wittels

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